'fiWfiOt'ljiii 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


i^ H 0/Z£  Wood      /-//Lis. 


'ATTORNEY  Kft^"^ 


A  SELECTION  OF  CASES 
AND  OTHER  AUTHORITIES  UPON 

CRIMIlSrAL    LAW 


BY 

JOSEPH   HENRY   BEALE 

BOYALL   PROFE8SOB   OF    LAW    IN    HARVARD    UNIVBRSITT 


THIRD    EDITION 


CAMBRIDGE 
HARVARD    UNIVERSITY   PRESS 


Copyright,  1915, 
By  Joseph  Henry  Be  ale 


PREFACE 

TO   THE   THIRD   EDITION. 


A  REARRANGEMENT  of  coursGS  in  the  Harvard  Law  School  has 
taken  out  of  the  course  on  Criminal  Law  and*  included  in  a  new 
course  the  topics  of  Causation,  Justification,  and  Excuse.  The 
chapters  in  which  these  topics  were  considered  have  therefore  been 
removed  from  this  book.  This  third  edition  is  identical  with  the 
second,  except  that  the  chapters  mentioned,  viz..  Chapters  V,  VIII, 
and  IX,  and  part  of  Chapter  III  of  the  old  edition,  have  been 
removed ;  but  this  change  has  made  necessary  an  entire  renum- 
bering of  the  pages  in  this  edition. 

Joseph  Henry  Beale. 

Cambridge,  January  1,  1915. 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/casesotherauthorOObeal 


TABLE  OF  CONTENTS. 


Pages. 

Chapter  I.     Introductory. 

Section       I.     Common  Law  and  Statute 1 

Section     II.     Nature  of  Crime 22 

Chapter  II.     The  Offence 

Section       I.     Felonies 33 

Section     II.     Misdemeanors 39 

Section  III.     Public  Torts 81 

Section    IV.     Incomplete  Offences 102 

Section     V.     A  Specific  Intent  as  Part  of  an  Offence      133 

Section    VI.     Jurisdiction  over  an  Offence 152 

Chapter  III.     The  Offence:  Modifying  Circumstances. 

Section       I.     Participation  of  a  Public  Officer      177 

Section     II.     Acquiescence  of  the  Injured  Party      182 

Section  III.     Consent  of  the  Injured  Party 192 

Section    IV.     Fault  of  the  Injured  Party 216 

Section     V.     Negligence  of  the  Injured  Party      226 

Section    VI.     Condonation 228 

Chapter  IV.     Culpability. 

Section       I.     What  Crimes  Require  a  Guilty  Mind 236 

Section      II.    The  mens  rea:  Intent 274 

Section   III.     The  mens  rea:  Negligence 302 

Section    IV.     Concurrence  of  Offence  and  Guilty  Mind  ......  320 

Chapter  V.     Culpability:  Modifying  Circumstances. 

Section       I.     Insanity 326 

Section      II.     Intoxication 350 

Section  III.     Coercion 361 

Section    IV.     Infancy:   Incorporation 365 

Section      V.     Ignorance  or  Mistake 368 

Section    VI.     Impossibility 378 

Section  VII.     Custom 382 

Chapter  VI.     Parties  in  Crime. 

Section       I.     Who  are  Parties      389 

Section     II.     Innocent  Agents 409 

Section  III.     Joint  Principals           412 


Vi  TABLE   OF   CONTENTS. 

Pages. 

Chapter  VI.    Parties  in  Crime  (Continued). 

Section    IV.     Principals  in  the  Second  Degree      415 

Section      V.     Accessories 420 

Section    VI.     Acts  done  in  Pursuance  of  a  Common  Design  ....  425 

Chapter  VII.     Crimes  against  the  Person. 

Section       I.     General  Principles      442 

Section     II.     Assault  and  Battery 444 

Section  III.     Rape 449 

Section    IV.     Murder 453 

Section      V.     Degrees  of  Murder 467 

Section    VI.     Manslaughter      469 

Chapter  VIII.     Larceny. 

Section       I.     What  Property  is  the  Subject  of  Larceny 484 

Section     II.     Possession. 

(a)  The  Act  of  Assuming  Possession 504 

(6)    Distinction  between  Possession  and  Custody 519 

(c)  Possession  in  case  of  Finding      554 

(d)  Tortious  Possession      589 

Section  III.     Taking  after  Delivery. 

(a)  Larceny  by  Bailee 623 

(&)  Larceny  by  Breaking  Bulk,  etc 630 

Section    IV.     Taking  with  Consent. 

(a)  What  constitutes  Consent 640 

(b)  Larceny  by  Trick      647 

(c)  DeUvery  by  Mistake 656 

Section      V.     Transfer  of  Title 672 

Section    VI.     Animus  Furandi 693 

Section  VII.     Aggravated  Larceny. 

(a)  Robbery  and  Larceny  from  the  Person 731 

(6)  Larceny  from  a  Building 733 

Chapter  IX.     Embezzlement 738 

Chapter  X.     Obtaining  Property  by  False  Pretences. 

Section      I.     The  Question  of  Title 750 

Section    II.     Property 753 

Section  III.     The  Pretence 757 

Chapter  XI.     Receiving  Stolen  Property. 

Section      I.     The  Receiving      794 

Section    II.     Stolen  Property 801 

Section  III.     Guilty  Knowledge 813 

Chapter  XII.     Crimes  against  the  Dwelling-Hoitse. 

Section      I.     Burglary 816 

Section    II.     Arson 833 

Chapter  XIII.     Forgery 837 


TABLE   OF   CONTENTS. 


VU 


Pages. 
Chapter  XIV.     Criminal  Conspiracy. 

Section      I.     Under  Ancient  Statutes 852 

Section    II.     Conspiracy  in  General 855 

Section  III.     Conspiracy  and  other  Offences  against  Trade    ....  865 

Chapter  XV.      The  Indictment. 

Section      I.     General  Requisites  of  an  Indictment 891 

Section    II.     Statement  of  the  Crime      921 

Section  III.     Particular  Allegations 926 

Section  IV.     Counts       941 

Section     V.     Statutory  SimpUfications  of  Criminal  Pleading      .    .    .  951 

Chapter  XVI.     Former  Conviction  or  Acquittal. 

Section      I.     Double  Jeopardy 965 

Appendix      1007 


TABLE  OF  CASES. 


A. 

Pages. 

Pages. 

Ball,  U.  S.  V. 

972 

Adams  v.  S. 

698 

Bamber,  R.  v. 

378 

C.v. 

291 

Bancroft  v.  Mitchell 

25 

R.  V.  (22  Q.  B.  D.  66) 

72 

Bank  of    New   South  Wales 

V. 

R.  V.  (R.  &  R.  225) 

752 

Piper 

262 

R.  V.  (1  F.  &  F.  86) 

813 

Banks,  R.  v. 

624 

Alderman,  C.  v. 

968 

Bankus  v.  S. 

384 

Aldrich  v.  P. 

516 

Bannen,  R.  v. 

410 

Allen,  S.  V. 

427 

Barker  v.  P. 

10 

Anon.  (Comb.  46) 

53 

Barnard,  R.  v. 

759 

(1  Cox,  250) 

217 

Barnes,  R.  v. 

742 

(Dyer,  99  a) 

817 

Barrow,  R.  v. 

207 

(Fost.  439) 

372 

Barry,  C.  v. 

50V 

(Kel.  31) 

362 

Bass,  R.  V. 

53J, 

(Kel.  35) 

520 

Bazeley's  Case 

53t^ 

(2  Leon.  12) 

382 

Bean,  C.  v. 

924 

(3  Mod.  97) 

53 

Beaton,  S.  v. 

934 

(8  Mod.  165) 

389 

Beecham,  R.  v. 

7W 

(12  Mod.  342) 

99 

Berry,  C.  v. 

746 

(Moore,  660) 

818 

Bingley,  R.  v. 

412 

(R.  &  R.  489) 

926 

Birney  v.  S. 

267 

(Y.  B.  2  &  3  Ed.  II. 

120) 

76 

Black,  S.  V. 

755 

(Y.  B.  1  Ed.  III.  16) 

52 

Blackham,  R.  v. 

289 

(Y.  B.  11  &  12  Edw. 

III. 

640)  484 

Blake,  R.  v. 

64 

(Lib.  Assis.  137) 

361 

Botkin,  P.  V. 

175 

(Lib.  Assis.  137) 

519 

Boyce,  R.  f. 

134 

(Y.  B.  7  Hen.  IV.  43) 

607 

Boynton,  C.  v. 

270 

(Y.  B.  4  Hen.  VII.  5) 

6(^ 

Bradford,  R.  v. 

23 

(Y.  B.  11  Hen.  VII. 

1) 

833 

Bradlaugh,  R.  v. 

.      87 

(Y.  B.  13  Hen.  VII. 

10) 

415 

Bradshaw,  R.    v. 

212 

(Y.  B.  13  Hen.  VII. 

14) 

288 

Branworth,  R.  v. 

93 

(Y.  B.  19  Hen.  VIII 

.2) 

486 

Breese  v.  S. 

419 

Armstrong,  R.  v. 

154 

Brennan  v.  P. 

978 

Articles  of  Inquest 

866 

Brig  William  Gray,  The 

378 

Asher,  S.  v. 

324 

Brocheshevet  v.  Maren 

38 

Ashton's  Case 

425 

Brooks,  C.  V. 

380 

Ash  well,  R.  V. 

573 

Brown,  R.  v.  (3  Salk.  189) 

22 

Atcheson  v.  Everitt 

24 

R.  V.  (14  Cox,  144) 

422 

Atkinson,  R.  v. 

674 

S.v. 
Bruce,  R.  v. 

892,  961 
289 

B. 

Bryan,  R.  v. 
Buckmaster,  R.  v. 

761 
677 

Bailey,  R.  v. 

369 

Bunce,  R.  v. 

650 

Baker  v.  S. 

94 

Burke,  C.  v. 

449 

Baldwin,  C.  v. 

846 

Burnett,  R.  v. 

100 

S.  V. 

27 

Button.  R.  V. 

791 

TABLE    OF   CASES. 


Pages. 

Pages. 

c. 

Eggington's  Case 

184 

Elder,  P.  v. 

439 

Cabbage,  R.  v. 

701 

Esop,  R.  V. 

371 

Callaghan,  C.  v. 

46 

Calvi,  R.  V. 

989 

F. 

Campbell,  S.  v. 

909 

Carr,  R.  v. 
Carrier's  Case 

810 
630 

Fabian  v.  Godfrey 
Faulkner,  R.  v. 

37 
144 

Carter,  S.  v. 

164 

Fidling,  R.  v. 
Finlayson,  R.  v. 
Fitchburg  R.  R.,  C.  v. 
Flanagan  v.  P. 
Fleener  v.  S. 

819 

Carver,  S.  v. 
Case,  R.  v. 
Castro  V.  Queen 

61 
192 
941 

572 
948 
336 

Chamberlain,  R.  v. 

304 

229 

Cheafor,  R.  v. 

488 

Flowers,  R.  v. 

581 

Chicago,  M.  &  S.  P.  Ry.,  S.  v. 

272 

Foley,  R.  v. 
Foster,  C.  v. 

593 

Chisholm  v.  Doulton 

255 

747 

Chissers,  R.  v. 

520 

Francis,  R.  v. 

731 

Choice  V.  S. 

358 

Franklin,  R.  v. 

290 

Claasen  v.  U.  S. 
Clair,  C.  v. 

9.50 
1004 

Fray's  Case 

473 

Clarence,  R.  v. 

196 

Clayton,  R.  v. 

421 

G. 

Closs,  R.  V. 

837 

CoUberg,  C.  v. 

214 

Gamlen,  R.  v. 

351 

Collins,  R.  V. 

103 

Gardner,  P.  v. 

610 
705 

Colvin  V.  S. 

848 

R.  V. 

Coney,  R.  v. 

393 

Gessert,  S.  v. 

153 

Cook,  R.  V. 

39 

Gibney,  C.  v. 

65 

Coombs,  S.  V. 

605 

Glover  v.  C. 

118 

Cross,  R.  V. 

98 

Goodenow,  S.  v. 

376 

Crouther's  Case 

45 

Goodhall,  R.  v. 

757 

Cruikshank,  U.  S.  v. 

903 

Gore's  Case 

140 

Crump  V.  C 
R.  V. 

882 
704 

Goss,  R.  V. 
Gray,  R.  v. 

769 
820 

Cullum,  R.  V. 

739 

Green,  C.  v. 

105,  968 

Grey's  Case 

455 

Grimm  v.  U.  S. 

178 

D. 

Daley,  C.  v. 

364 

H. 

Damon,  S.  v. 

1000 

Damon's  Case 

893 

Hadley  v.  S. 

465 

Davies,  R.  v. 

821 

C.v. 

398 

Davis,  R.   V.  (14  Cox,  563) 

351 

Halfin  V.  S. 

19 

(5  Cox,  237) 

928 

Hall,  R.  V.  (3  C.  &  P.  409) 

370 

U.  S.  V. 

152 

•     R.  V.  (3  Cox,  245) 

715 

Deane,  R.  v. 

967 

Hall's  Case 

98 

Delaval,  R.  t^. 

92 

Hands,  R.  v. 

643 

Dickinson,  R.  v. 

703 

Hannon,  R.  v. 

76 

Dobbs's  Case 

133 

Harkins,  C.  v. 

784 

Dodge,  S.  V. 

935 

Harmon,  U.  S.  v. 

287 

Dolan,  R.  V. 

801 

Harrington,  C.  v. 

906 

Donaldson,  S.  v. 

877 

Hartnett,  C.  v. 

733 

Doody,  R.  V. 

350 

Haskins  v.  P. 

938 

Drew,  C.  v. 

776 

Hathaway,  R.  v. 

73 

Dykes,  R.  v. 

363 

Hawkins,  R.  v. 

430 

Haynes,  R.  v. 

329 

E. 

Hays,  C.  v. 

743 

Headge,  R.  v. 

738 

Eckert,  C.  v. 

81 

Hehir,  R.  v. 

584 

Edmonds  v.  S. 

510 

Hendry  v.  S. 

387 

Edwards,  R.  v.  (13  Cox,  384) 

641 

Henry,  C.  v. 

850 

R.  V.  (8  Mod.  320) 

855 

Hersey,  C.  v. 

898 

Egan,  R.  r. 

319 

\  Hildebrand  v.  P. 

524 

TABLE  OF  CASES. 


XI 


Pages. 

Hirn  v.  S.  901 

Holder,  C.  v.  610 

Holland,  R.  v.  226 

HoUoway,  R.  v.  711 

Holmes's  Case  833 

Holt,  S.  V.  60 

Hormed  v.  Hacon  34 

Horton,  S.  v.  293 

Hudson,  R.  v.  218 

U.  S.  V.  8 

Huggett's  Case  470 

Hugh,  R.  V.  (Abbr.  Plac.  19)  38 

R.  V.  (Y.  B.  30  &  31  Ed.  I.  529)  34 

Hunt,  C.  V.  870 

S.  V.  515 

Hurley,  S.  v.  130 

Hurst,  P.  V.  748 


Ingles,  S.  V.  999 

Isaac's  Case  835 

Ivens,  R.  V.  43 

Ives,  S.  V.  811 


Jackson  v.  C.  155 

S.  V.  40 

Jaffe,  P.  V.  112 

James,  C.  v.  637 

R.  V.  927 

Jennison,  R.  v.  774 

Johnson  v.  S.  314 

S.  V.  359,  934 

Johnson's  Case  821 
Jones,  R.  v.  (2  Ld.  Raym.  1013)        23 

R.  V.  {2  Sir.  1146)  43 

Journeyman-Tailors,  R.  v.  869 


K. 

Kanavan's  Case  89 

Keefer,  P.  v.  431 

Keenan,  S.  v.  31 

Kelley,  C.  v.  958 

Kelly,  R.  v.  134 
Kennedy,  C.  v.  (170  Mass.  18)         119 

C.  V.  (160  Mass.  312)  229 

Kennel  v.  Church  33 

Kew,  R.  V.  227 

Kilham,  R.  v.  750 

King  V.  P.  95 

C.  V.  84 

Knapp,  C.  V.  416 

Knight,  R.  v.  151 

Kostenbauder,  C.  v.  406 


Lafferty,  Ohio  v.  '       1 

Lannan,  C.  v.  526 

Larner,  R.  v.  789 


Lascelles  v.  S. 
Latimer,  R.  v. 
Lavender,  R.  v. 
Ledgerwood  v.  S. 
Ledginham,  R.  v. 
Lee  Kong,  P.  v. 
Leigh's  Case 
Leighton,  v.  P. 
Le  Mott's  Case 
Leonard,  C.  v. 
Lester,  C.  v. 
Levett's  Case 
Lewis,  In  re 

S.v. 
Libby,  S.  v. 
Lindsey  v.  S. 
Linkhaw,  S.  v. 
Little,  R.  V. 
Lombard's  Case 
Loud,  C.  V. 
Lovell,  R.  V. 
Lowrey,  C.  v. 
Lucas,  S.  V. 
Lynn,  R.  v. 
Lyons,  R.  v. 


M. 

McCarty,  S.  v. 
McCord  V.  P. 
McDaniel's  Case 
McDonald,  C.  v. 
McGowan,  P.  v. 
M'Growther's  Case 
M'Naghten's  Case 
Mace,  S.  v. 
Macloon,  C.  v. 
Madox,  R.  V. 
Maher  v.  P. 
Malin,  Resp.  v. 
Manney's  Case 
Mansfield,  R.  v. 
Marshall,  C.  v. 
Martin,  R.  v.  (R.  &  R.  196) 

R.  V.  (2  Moo.  123) 
Mash,  C.  V. 
Mason  v.  P. 
Maud,  R.  V. 
Memorandum  (Kel.  52) 
Merry  v.  Green 
Meyer,  P.  v. 
Middleton,  R.  v 
Miller,  R.  v. 
Mills,  P.  V. 

R.  V. 
Mink,  C.  V. 
Mitchell  V.  S. 
Mitchum  v.  S. 
Moore,  P.  v. 

R.  V. 

S.  r. 
Morfit,  R.  V. 


Pages. 
850 
148 
539 

13 
922 
108 
624 
468 
819 
814 
737 
368 
232 
1001 
929 
162 

87 
671 
867 
970 
641 
414 
429 

88 
820 


909 
222 
182 
107 
1002 
362 
326 
907 
166 
633 
478 
111 

52 
936 

18 
177 
211 
268 
824 

75 
409 
555 
513 
656 
795 
180 
759 
300 
6 
645 
446 
672 
321 
702 


Xll 


TABLE    OF    CASES. 


Pages. 

Morly's  Case 
Morrill,  C.  v. 
Morris,  R.  v. 
Morris  Run  Coal  Co.  v.  Barclay 

Coal  Co. 
Morrison,  R.  v. 
Morse  v.  S. 

P.v. 
Mucklow,  R.  V. 
Mullaly  V.  P. 
Myers  v.  S. 

N. 

Napper,  R.  v. 

Nelson  v.  Rex 

New  Bedford  Bridge,  C.  v. 

Newbury  Bridge,  C.  v. 

NichoUs,  R.  V. 

Noble,  S.  V. 

Norris  v.  Buttingham 

Norton,  C.  v. 

Norval,  R.  v. 

Note  (Dyer  5  a) 

(Y.  B.  3  Hen.  VII.  12) 

(Y.  B.  21  Hen.  VII.  14) 


Olmstead,  P.  v. 
O'Malley,  C.  v. 


o. 


p. 


Pardenton,  R.  v. 

Parks,  P.  V. 

Parsons  v.  S. 

Patterson,  S.  v. 

Pear,  R.  v. 

Pearson's  Case 

Peaslee,  C.  v. 

Pembliton,  R.  v. 

Perkins,  C.  v. 

Perrigo,  C.  v. 

Phillips,  C.  V. 

Pierce,  C.  v. 

Pigot,  R.  V. 

Plant,  R.  V. 

Poulterer's  Case 

Powers,  R.  v. 

Poyser,  R.  v. 

Pratt,  R.  V. 

Pray,  C.  v. 

Preston,  R.  v. 

Prince,  R.  v.  (L.  R.  2  C.  C.  154) 

R.  V.  (L.  R.  1  C.  C.  150) 
Prius,  C.  V. 
Pywell,  R.  V. 


Q. 


Quinn  v.  P. 


R. 


469 

Pages. 

220 

Ragg,  R.  V. 

769 

991 

Randolph,  C.  v. 

127 

Raven,  R.  v. 

623 

888 

Ray,  C.  V. 

844 

501 

Reed,  R.  v.  (12  Cox,  1) 

382 

320 

R.  V.  (6  Cox,  284) 

543 

721 

Renshaw,  R.  v. 

444 

554 

Resolution  (And.  114) 

818 

498 

Reynolds  v.  U.  S. 

286 

266 

Richards,  R.  v. 

82 

S.v. 

333 

Richardson,  R.  v.  (Leach,  387) 

389 

R.  V.  (6  C.  &  P.  335) 

794 

930 

Riley,  R.  v. 

603 

718 

Ritson,  R.  V. 

840 

366 

Robins,  R.  v. 

536 

923 

Robinson,  R.  v. 

753 

307 

Roby,  C.  V. 

995 

937 

Roderick,  R.  v. 

102 

37 

Rogers,  C.  v. 

330 

782 

F.v. 

353 

542 

Rothwell,  R.  V. 

477 

529 

Rowe,  R.  V. 

669 

528 

Rubin,  C.  v. 

654 

529 

Ruggles,  P.  V. 

85 

Rnloff  V.  P. 

425 

Ruperes  v.  Ashby 

39 

Russell,  S.  V. 

925 

955 

Russett,  R.  V. 

685 

523 

Ryan,  C.  v. 

650 

101 

S. 

St.  John,  C.  V. 

231 

402 

Salmon,  R.  v. 

306 

337 

Schmidt,  R.  v. 

805 

223 

Searing,  R.  v. 

487 

647 

Selway,  R.  v. 

732 

350 

Seme,  R.  v. 

457 

122 

Serra  v.  Mortiga 

917 

141 

Sexton,  S.  v. 

931 

928 

Seymour,  R.  v. 

49 

902 

Sharpe,  R.  v. 

274 

422 

Sharpless,  C.  v. 

90 

309 

R.  V. 

640 

23 

Shaw,  C.  V. 

497 

989 

Sheppard,  R.  v. 

139 

852 

Sherras  v.  De  Rutzen 

269 

609 

Shickle,  R.  v. 

492 

635 

Silsbee,  C.  v. 

41 

627 

Simmons  v.  U.  S. 

986 

895 

Skerrit,  R.  v. 

415 

564 

Slattery,  C.  v. 

228 

275 

Slowly,  R.  V. 

521 

674 

Smith  V.  P.  (53  N.  Y.  Ill) 

652 

861 

(25  111.  17) 

862 

858 

C.  r.  (6  Cush.  80) 

95 

(111  Mass.  429) 

735 

R.  V.  (1  Stra.  704) 

97 

(Dears.  559) 

135 

825 

(1  Cox,  260) 

365 

TABLE    OF    CASES. 


XUl 


Pages. 

Pages. 

Smith,  R.  V.  (Dears.  494) 

796 

Tuck,  C.  V. 

947 

S.v. 

460,932 

Tucker,  C.  v. 

836 

U.  S.  V. 

7 

Tunnard's  Case 

632 

Solomons,  R.  v. 

682 

Turner,  R.  v. 

856 

Spies  V.  P. 

432 

Tyrrell,  R.  v. 

403 

Spurgeon,  R.  v. 

704 

Stanley  v.  S. 

617 

V. 

Starin  v.  P. 

423 

Stearns,  S.  v. 

29 

Vandercomb's  Case 

987 

Stedman,  R.  v. 

473 

Vane's  Case 

930 

Steimling,  C.  v. 

600 

Vaux's  Case 

965 

Stephens,  R.  v. 

252 

Vick  V.  S. 

386 

U.  S.  V. 

115 

Stephenson,  C.  v. 

823 

R.  V. 

54 

W. 

Stevens  v.  Dimond 

20 

Wade,  R.  v. 

794 

Steward,  C.  v. 

822 

Wakeling,  R.  v. 

758 

Stone,  C.  V. 

940 

Walker  v.  S. 

830 

Stonehouse,  R.  v. 

22 

F.v. 

360 

Stratton,  C.  v. 

209 

Walsh  V.  P. 

125 

R.  V. 

216 

R.  V. 

504 

Swindall,  R.  v. 

390 

Warburton,  R.  v. 

859 

Ward  V.  P. 

607 

T. 

Watson,  R.  v. 

539 

Watts,  R.  V. 

489 

Taylor,  C.  v. 

69 

Webster,  C.  v. 

461 

S.  V.  (70  Vt.  1) 

137,  441 

R.v. 

695 

(3  Dutch.  117) 

494 

Welsh,  R.  V. 

475 

Taylor's  Case 

51 

Wemyss  v.  Hopkins 

997 

Teischer,  R.  v. 

67 

West,  R.  V. 

568 

Thomas,  P.  v. 

754 

Wheatly,  R.  v. 

77 

Thompson  v.  S. 

512 

Whitcomb,  C.  v. 

783 

C.  t'. 

375 

White,  C.  V. 

445 

R.  V. 

473 

R.  V.  (6  Co.x,  213) 

505 

Thristle,  R.  v. 

625 

(1  F.  &  F.  665) 

814 

Thm-born,  R.  v. 

558 

Wilkinson,  R.  v. 

693 

Tibbits,  R.  v. 

56 

Willard,  C.  ;;. 

404 

Tideswell,  R.  v. 

688 

Williams,  R.  v. 

136 

Tinkler,  R.  v. 

373 

Wilson,  R.  V. 

927 

Titus,  C.  V. 

570 

Wing,  C.  V. 

73 

Tollett,  R.  V. 

540 

Wispington  v.  Edlington 

33 

Tolliver,  C.  v. 

932 

Wody,  R.  V. 

485 

Tolson,  R.  V. 

236 

Wolfstein  v.  P. 

668 

Tomson,  R.  v. 

454 

Woodward,  R.  v. 

799 

Topolewski  v.  S. 

186 

Wright's  Case 

209 

Townley,  R.  v. 

589 

Wyckoff,  S.  V. 

157 

Towse,  R.  V. 

374 

Traverse,  C.  v. 

933 

Trebilcock,  R.  v. 

707 

Y. 

Trono  v.  U.  S 

980 

Yong's  Case 

454 

"  Nothing  is  more  common  than  to  hear  those  who  have  taken 
only  a  superficial  view  of  the  Crown  Law  charge  it  with  number- 
less hardships  and  undistinguishing  rigor;  whereas  those  who 
have  more  fully  examined  it  agree  that  it  wants  nothing  to  make 
it  admired  for  clemency  and  equity,  as  well  as  justice,  but  to  be 
understood.  It  is  so  agreeable  to  reason,  that  even  those  who 
suffer  by  it  cannot  charge  it  with  injustice  ;  so  adapted  to  the 
common  good  as  to  suffer  no  folly  to  go  unpunished,  which  that 
requires  to  be  restrained  ;  and  yet  so  tender  of  the  infirmities  of 
human  nature,  as  never  to  refuse  an  indulgence  where  the  safety 
of  the  public  will  bear  it.  It  gives  the  Prince  no  power,  but  of 
doing  good  ;  and  restrains  the  people  from  no  liberty,  but  of 
doing  evil."  —  Preface  to  Hawkins'  Pleas  of  the  Crown. 


CASES  ON  CRIMINAL  LAW. 


CHAPTER   I. 
INTRODUCTORY. 


SECTION    I. 
Common  Law  and  Statute. 

OHIO  V.  LAFFERTY. 

Court  of  Common  Pleas,  Ohio.     1817. 

[Reported  Tappan,  81.  J 

Lafferty  was  convicted,  on  three  several  indictments,  for  selling 
unwholesome  provisions. 

Wright,  for  the  defendant,  moved,  in  arrest  of  judgment  "for  that  \    >+ 
there  is  no  law  of  this  state  against  selling  unwholesome  provisions."  > 
He  observed,  that  the  indictment  was  bottomed  upon  the  common  law 
of  England,  which  was  not  in  force  in  this  state,  it  never  having  been 
adopted  by  our  constitution,  or  recognized  by  our  laws  or  judicial  de- 
cisions. 

Tappan,  President.  The  question  raised  on  this  motion,  whether 
the  common  law  is  a  rule  of  decision  in  this  state?  is  one  of  very  great 
interest  and  importance,  and  one  upon  which  contradictory  opinions 
have  been  holden  both  at  the  bar  and  upon  the  bench. 

No  just  government  ever  did,  nor  probably  ever  can,  exist  without 
an  unwritten  or  common  law.  By  the  common  law  is  meant  those  ^ 
maxims,  principles,  and  forms  of  judicial  proceeding  which  have  no 
written  law  to  prescribe  or  warrant  them,  but  which,  founded  on  the 
laws  of  nature  and  the  dictates  of  reason,  have,  by  usage  and  custom, 
become  interwoven  with  the  written  laws,  and,  by  such  incorporation, 
form  a  part  of  the  municipal  code  of  each  state  or  nation  which  has 
emerged  from  the  loose  and  erratic  habits  of  savage  life  to  civihzation, 
order,  and  a  government  of  laws. 

For  the  forms  of  process,  indictment,  and  trial,  we  have  no  statute 
law  directing  us  ;  and  for  almost  the  whole  law  of  evidence,  in  criminal 
as  well  as  in  civil  proceedings,  we  must  look  to  the  common  law,  for 


2  OHIO   V.    LAFFERTY.  ^CHAP.  I. 

we  have  no  other  guide.  Can  it  be  said,  then,  that  the  common  law  is 
not  in  force  when,  without  its  aid  and  sanction,  justice  cannot  be  ad- 
ministered ;  when  even  the  written  laws  cannot  be  construed,  explained, 
and  enforced  without  the  common  law,  which  furnishes  the  rules  and 
principles  of  such  construction  ? 

We  may  go  further,  and  sa}-  that  not  only  is  the  common  law  neces- 
sarily in  force  here,  but  that  its  autEont}'  is  superior  to  that  of  the 
written  laws ;  for  it  not  only  furnishes  the  rules  and  principles  by 
which  the  statute  laws  are  construed,  but  it  ascertains  and  determines 
the  validity  and  authority  of  them.  It  is,  therefore,  that  Lord  Hobart 
said  that  a  statute  law  against  reason,  as  to  make  a  man  a  judge  in  his 
own  cause,  was  void. 

As  the  laws  of  nature  and  reason  are  necessaril}-  in  force  in  every 
community  of  civilized  men  (because  nature  is  the  common  parent,  and 
reason  the  common  guardian  of  man),  so  with  communities  as  with 
individuals,  the  right  of  self-preservation  is  a  right  paramount  to  the 
institution  of  written  law  ;  and  hence  the  maxim,  the  safety  of  the 
■^'Hople  is  the  supreme  laio,  needs  not  the  sanction  of  a  constitution  or 
statute  to  give  it  validity  and  force.  But  it  cannot  have  validit}'  and 
force,  as  law,  unless  the  judicial  tribunals  have  power  to  punish  all 
such  actions  as  directly  tend  to  jeopardize  that  safety  ;  unless,  indeed, 
the  judicial  tribunals  are  the  guardians  of  public  morals,  and  the  con- 
servators of  the  public  peace  and  order.  Whatever  acts,  then,  ai-e 
wicked  and  immoral  in  themselves,  and  directly  tend  to  injure  the 
coramunit}',  are  crimes  against  the  community,  which  not  only  ma//, 
but  must,  be  repressed  and  punished,  or  government  and  social  order 
cannot  be  preserved.  It  is  this  salutary  principle  of  the  common  law 
which  spreads  its  shield  over  society  to  protect  it  from  the  incessant 
activity  and  novel  inventions  of  the  profligate  and  unprincipled,  — • 
inventions  which  the  most  perfect  legislation  could  not  always  foresee 
and  guard  against. 

But  although  the  common  law  in  all  countries  has  its  foundation  in 
reason  and  the  laws  of  nature,  and  therefore  is  similar  in  its  general 
principles,  yet  in  its  application  it  has  been  modified  and  adapted  to 
various  forms  of  government;  as  the  different  orders  of  architecture, 
having  their  foundation  in  utility  and  graceful  proportion,  rise  in  vari- 
ous forms  of  symmetry  and  beauty,  in  accordance  with  the  taste  and 
judgment  of  the  builder.  It  is  also  a  law  of  liberty  ;  and  hence  we 
find  that  when  North  America  was  colonized  by  emigrants  who  fled 
from  the  pressure  of  monarchy  and  priestcraft  in  the  old  world  to  enjoy 
freedom  in  the  new,  they  brought  with  them  the  common  law  of  Eng- 
land (their  mother  countrjO,  claiming  it  as  their  birthright  and  inher- 
itance. In  their  charters  from  the  crown  they  were  careful  to  have  it 
recognized  as  the  foundation  on  which  they  were  to  erect  their  laws 
and  governments;  not  more  anxious  was  ^neas  to  secure  from  the 
burning  ruins  of  Troj'  his  household  gods,  than  were  these  first  settlers 
of  America  to  secure  to  themselves  and  their  children  the  benefits  of 


SECT.  I.]  OHIO   V.    LAFFERTY.  3 

the  common  law  of  England.  From  thence,  through  every  stage  of  the 
colonial  governments,  the  common  law  was  in  force  so  far  as  it  was  found 
necessary  or  useful.  When  the  revolution  commenced,  and  independ- 
ent state  governments  were  formed ;  in  the  midst  of  hostile  collisions 
with  the  mother  country,  when  the  passions  of  men  were  inflamed,  and 
a  deep  and  general  abhorrence  of  the  tyranny  of  the  British  govern- 
ment was  felt,  the  sages  and  patriots  who  commenced  that  revolution, 
and  founded  those  state  governments,  recognized  in  the  common  law  a 
guardian  of  liberty  and  social  order.  The  common  law  of  England  has 
thus  always  been  the  common  law  of  the  colonies  and  states  of  North 
America  ;  not,  indeed,  in  its  full  extent,  supporting  a  monarchy,  aris- 
tocracy, and  hierarchy,  but  so  far  as  it  was  applicable  to  our  more  free 
and  happy  habits  of  government. 

Has  society  been  formed  and  government  instituted  in  Ohio  on  dif- 
ferent principles  from  the  other  states  in  this  respect?  The  answer 
to  this  question  will  be  found  in  our  written  laws. 

The  ordinance  passed  by  the  congress  of  the  United  States  on  the 
13th  of  July,  1787,  "  for  the  government  of  the  territory  of  the  United 
States  North  West  of  the  river  Ohio,"  is  the  earliest  of  our  written 
laws.  Possessing  the  Northwestern  Territory  in  absolute  sovereignty, 
the  United  States,  by  that  instrument,  provide  for  the  temporary  gov- 
ernment of  the  people  who  may  settle  there  ;  and,  to  use  the  language 
of  that  instrument,  "  for  extending  the  fundamental  principles  of  civil 
and  religious  liberty,  which  form  the  basis  whereon  these  republics, 
their  laws  and  constitutions,  are  erected  ;  to  fix  and  establish  those 
principles  as  the  basis  of  all  laws,  constitutions  and  governments, 
which  forever  hereafter  shall  be  formed  in  the  said  territorj- ;  to  pro- 
vide also  for  the  establishment  of  states  and  permanent  government 
therein;  and  for  their  admission  to  a  share  in  the  federal  councils,  on 
an  equal  footing  with  the  original  states,  at  as  early  periods  as  may  be 
consistent  with  the  general  interest,"  it  was  ordained  and  declared, 
"that  the  inhabitants  of  the  said  territory  shall  ahvaijs  be  entitled  to 
the  benefits  of  the  writ  of  habeas  corpus^  and  of  the  trial  by  jury  ;  of  a 
proportionate  representation  of  the  people  in  the  legislature,  and  of 
Judicial  ^proceedings  according  to  the  course  of  the  common  laiv,''^ — ^  as 
one  of  the  articles  of  compact  between  the  original  states,  and  the 
people  and  states  in  the  said  territory,  to  remain  forever  unalterable 
unless  by  common  consent.  Under  this  ordinance  we  purchased  lands 
and  made  settlements  in  this  then  Northwestern  Territory  ;  we  be- 
came voluntary  parties  to  this  contract,  and  made  it,  by  our  own  act, 
what  it  was  intended  to  be,  "  the  basis  of  all  our  laws,  constitutions 
and  governmen*^"  —  and  thus  the  common  law  became  here,  as  it  had 
become  in  tha  earliest  colonies,  the  foundation  of  our  whole  system 
of  jurisprudence. 

That  these  articles  of  compact  were  of  perpetual  obligation  upon  the 
people  and  states  to  be  formed  in  the  territory,  unless  altered  by  the 
mutual  consent  of  such  states  and  of  the  original  states,  is  a  position 


4  OHIO    V.    LAFFERTY.  [CHAP.  I. 

which  I  have  never  heard  controverted ;  3'et  it  may  not  be  useless  to 
advert  to  express  recognitions  of  it  by  both  the  contracting  parties. 
First,  the  United  States,  by  the  act  of  congress  entitled  "an  act  to 
enable  the  people  of  the  eastern  division  of  the  territory  North  West  of 
the  river  Ohio,  to  form  a  constitution  and  state  government,  and  for 
the  admission  of  such  state  into  the  Union,  on  an  equal  footing  with  the 
original  states,  and  for  other  purposes,"  under  the  authority  of  which 
Ohio  became  an  independent  state,  authorized  the  people  of  said  divis- 
ion to  form  a  constitution  and  state  government,  '^  provided  the  same 
shall  be  republican,  and  not  repugnant  to  the  ordinance  of  the  13th  of 
July,  1787,  between  the  original  states  and  the  people  and  states  of 
the  territory  North  West  of  the  river  Ohio."  Section  5th.  Second, 
the  people  of  Ohio,  by  the  preamble  to  their  state  constitution,  declare, 
that  they  ordain  and  establish  that  constitution,  "  consistent  with  the 
constitution  of  the  United  States,  the  ordinance  of  congress  of  1787, 
and  the  law  of  congress." 

The  common  law  being  a  part  of  the  existing  system  of  jurisprudence 
at  the  time  when  the  state  government  was  formed,  and  its  continuance 
being  expressly  provided  for  by  the  4th  section  of  the  last  article  or 
schedule  to  this  constitution,  which  declares  that  "all  laws  and  parts 
of  laws  now  in  force  in  this  territory,  not  inconsistent  with  this  consti- 
tution, shall  continue  and  remain  in  full  effect  until  repealed  by  the 
legislature."  We  will  next  examine  the  power  of  this  court  to  en- 
force it. 

The  1st  section  of  the  3d  article  of  the  constitution  declares  that 
"  the  judicial  power  of  the  state,  both  as  to  matters  of  law  and  equity, 
shall  be  vested  in  a  supreme  court,  in  courts  of  common  pleas  for  each 
county,"  etc.  The  2d  section  declares  that  the  supreme  court  "shall 
have  original  and  appellate  jurisdiction,  both  in  conunon  law  and 
chancery,  in  such  cases  as  shall  be  directed  by  law  ; "  and  the  3d 
section,  that  "the  court  of  common  pleas  shall  have  common  law  and 
chancery  jurisdiction  in  all  such  cases  as  shall  be  directed  by  law." 
These  sections  refer  to  future  legislative  provision  to  mark  the  bound- 
aries of  jurisdiction  between  the  court  of  common  pleas  and  the 
supreme  court,  and  to  fix  their  extent ;  but  they  do  not  refer  to  such 
provision  to  point  out  the  particular  wrongs  which  may  be  redressed 
by  petition  in  equity,  by  private  suit,  or  by  criminal  prosecution.  Such 
hks  been  the  uniform  construction  of  these  sections  by  the  legislature 
since  the  constitution  was  formed,  as  must  be  evident  from  the  fact 
that  no  statute  law  has  ever  been  made  or  projected  to  detail  those 
wrongs,  private  or  public,  which  the  judicial  tribunals  were  to  redress 
bv  virtue  of  their  chancery  powers,  or  "  according  to  the  course  of  the 
common  law."  Such  a  statute  would  indeed  be  a  phenomenon,  the 
result  of  a  more  perfect  legislation  than  man  has  yet  attained  to. 

But  it  has  been  urged  that  the  4th  section  of  the  3d  article  is  the 
only  part  of  the  constitution  which  gives  this  court  jurisdiction  in 
criminal  cases,  and  that  it  expressly  refers  to  future  statutory  provis- 


SECT.  I.]  OHIO    V.    LAFFERTY.  5 

ion,  to  point  out  the  eases  in  which  such  jurisdiction  may  be  exercised. 
The  language  of  this  section  is:  "The  judges  of  the  supreme  court 
and  courts  of  common  pleas  shall  have  complete  criminal  jurisdiction 
in  such  cases,  and  in  such  manner  as  may  be  pointed  out  by  law." 

The  laws  in  existence  at  the  time  when  the  constitution  was  formed, 
November  29,  1802,  and  the  state  government  commenced  (beside 
those  of  the  United  States),  were  the  common  law,  the  statutes  of 
other  states  adopted  b}'  the  governor  and  judges  of  the  territory,  and 
the  acts  of  the  territorial  legislatures,  —  all  which  were  continued  in 
force  by  the  constitution.  This  section  of  the  constitution,  by  giving 
jurisdiction  in  matters  of  crime,  "  i?i  such  cases  and  in  such  manner  as 
mat/  be  pointed  out  by  law,^'  must  mean,  in  such  cases  and  in  such 
TnaTiner  as  ma}'  be  now  or  hereafter  pointed  out  by  law  ;  for  it  must 
either  intend  to  giA'e  the  court  jurisdiction  according  tG  the  then  ex- 
isting laws,  or  to  require  of  the  legislature  an  immediate  and  perfect 
criminal  code,  and  so  operate  as  a  repeal  of  the  former.  It  could  not 
intend  the  latter,  because  neither  a  convention  or  legislature  can  ever 
be  construed  to  have  exceeded  their  power,  unless  such  intent  is  clearly 
and  positively  expressed  ;  and  so  far  is  such  intent  from  being  ex- 
pressed, by  the  section  referred  to,  that  the  utmost  latitude  of  con- 
struction leaves  the  intent  that  way  ambiguous.  It  must  intend  the 
former :  1.  Because  the  convention  who  framed  the  constitution  were 
limited  in  their  powers  by  the  ordinance  and  law  of  congress ;  they  had 
not  power  to  deprive  the  people  of  Ohio  of  the  benefit  of  judicial  pro- 
ceedings according  to  the  course  of  the  common  law.  2.  Because  the 
convention  intended  the  constitution  to  be  consistent  with  the  ordi- 
nance and  law.  3.  Because  the  constitution  expressly  continues  in 
force  all  existing  laws. 

Such  seems  ever  to  have  been  the  opinion  of  the  legislature  of  this 
state  ;  for  the  first  general  assembly'  which  sat  under  the  constitution 
passed  an  act  to  fix  the  extent  of  jurisdiction  in  the  courts,  and  gave 
to  the  common  pleas  "  cognizance  of  all  crimes,  offences,  and  misde- 
meanors, the  punishment  whereof  is  not  capital."  Stat.  Laws,  vol.  i,  40. 
But  neither  the  first  or  second  general  assembly  deemed  it  necessary 
to  make  any  material  alteration  in  the  criminal  code  the}-  had  received 
from  the  territorial  government;  nor  had  the  state  any  other  criminal 
laws  until  the  first  of  August,  1805.  And  when  the  state  courts  super- 
seded the  territorial,  the}-  were  required,  "  agreeable  to  their  respective 
jurisdictions,"  to  "take  cognizance  of  all  judgments,  causes,  and  mat- 
ters whatsoever,  whether  civil  or  criminal,  that  are  now  pending,  unde- 
termined or  unsatisfied,"  in  the  territorial  courts ;  and  they  were 
"authorized  and  required  to  hear  and  decide  upon  the  said  matters." 
Stat.  Laws,  vol.  i,  50.  In  prosecutions  at  common  law,  then  depending 
in  the  territorial  courts,  the  state  courts  were  thus  directed  to  take  cog- 
nizance, to  hear  and  decide  upon  them,  "  according  to  the  course  of  the 
common  law." 

But  suppose  that  the  position  is  a  correct  one,  that  the  principles  of 


6  MITCHELL   V.    STATE.  [CHAP.  I. 

the  commoii  law  have  no  force  or  authority  in  this  state,  and  what  are 
the  consequences?  They  are  these:  thai  there  are  no  legal  forms  of 
process,  of  indictments,  or  trial;  there  is  no  law  of  evidence,  and  the 
statute  laws  cannot  be  enforced,  but  must  remain  inoperative  from  the 
uncertain  signification  of  the  terms  used  in  defining  criminal  oflTences. 
Beside,  the  constitution  gives  jurisdiction  to  this  court  in  criminal 
matters,  "in  such  cases  and  in  such  manner  as  may  he  ■pointed  out  hy 
law ;  "  and  as  we  have  no  statute  pointing  out  the  manner  in  which 
such  jurisdiction  shall  be  exercised,  the  consequence  follows  that  it 
cannot  be  lawfully  exercised  in  any  manner  whatever. 

On  the  whole,  therefore,  it  may  be  concluded  that,  were  the  written 
laws  wholly  silent  on  the  subject,  the  principles  and  maxims  of  the 
common  law  must,  of  necessity,  be  the  rule  and  guide  of  judicial  decis- 
ion in  criminal  as  well  as  in  civil  cases;  to  supply  the  defects  of  a 
necessarily  imperfect  legislation,  and  to  prevent  "  the  will  of  the  judge, 
that  law  of  tyrants,"  being  substituted  in  the  room  of  known  and 
settled  rules  of  law  in  the  administration  of  justice. 

And  that  by  the  ordinance  of  congress,  the  constitution  and  laws  of 
the  state,  a  common-law  jurisdiction  in  criminal  cases  is  established  and 
vested  in  this  court.     The  motion  in  arrest  is,  therefore,  overruled. 

The  defendant  was  fined  fifty  dollars  in  each  case,  with  costs. 


MITCHELL  V.  STATE. 

Supreme  Court  of  Ohio.     1884. 

\Iiepmted  42  Ohio  State,  383.] 

Oket,  J.*  The  following  positions  are  shown  by  the  authorities  to 
be  impregnable. 

1.  In  Ohio,  as  under  the  federal  government  (U.  S.  v.  Hudson,  7  Cr. 
32  ;  U.  S.  V.  Coolidge,  1  Wheat.  415 ;  U.  S.  v.  Britton,  108  U.  S. 
197)  we  have  no  common-law  offences.  No  act,  however  atrocious, 
can  be  punished  criminally,  except  in  pursuance  of  a  statute  or  ordi- 
nance lawfully  enacted.  This  proposition  was  not  established  without 
prolonged  discussion.  In  Ohio  u.  Lafferty,  Tappan,  81  (1817),  it  was 
held  in  an  able  opinion  by  Judge  Tappan,  that  common-law  crimes  are 
punishable  in  Ohio;  but  Judge  Goodenow,  a  member  of  this  court 
under  the  former  constitution,  in  his  work  entitled  "  Historical  Sketches 
of  the  Principles  and  Maxims  of  American  Jurisprudence,  in  Contrast 
with  the  Doctrines  of  the  English  Common  Law,  on  the  Subject  of 
Crimes  and  Punishments,"  (1819),  completely  refuted  the  soundness  of 

1  Only  so  much  of  the  case  as  discusses  the  province  of  the  common  law  in  Ohio  is 
given. 


SECT.  I.]  UNITED   STATES   V.    SMITH.  7 

that  view,  and  it  is  now  perfectly  well  settled  that  Ohio  v.  Lafferty  is 
not  law.  Key  v.  Vattier,  1  Ohio,  132,  144  ;  Winn  v.  State,  10  Ohio, 
345  ;  Vanvalkenburgh  v.  State,  11  Ohio,  404;  Allen  ?;.  State,  10  Ohio 
St.  287,  301 ;  Smith  v.  State,  12  Ohio  St.  466,  409  ;  Knapp  v.  Thomas, 
39  Ohio  St.  377,  385. 

2.  In  order  that  this  statement  may  not  mislead,  it  is  proper  to  say, 
that  while  the  rule  is  well  settled  that  a  statute  defining  a  crime  and 
prescribing  punishment  therefore  must  be  strictly  construed  (Denbow 
V.  State,  18  Ohio,  11  ;  Hall  v.  State,  20  Ohio,  1  ;  Shultz  v.  Cambridge^ 
38  Ohio  St.  659)  ;  still,  where  the  legislature,  in  defining  a  crime,  adopts 
the  language  emplo3-ed  bj-  writers  of  recognized  authority  in  defining 
the  crime  at  common  law,  the  presumption  is  that  it  was  intended  the 
commission  of  acts  which  at  common  law  would  constitute  such  crime, 
should  constitute  a  crime  under  the  statute,  and  the  statute  will  be  so 
construed.  Accordingly  it  was  held  in  Ducher  v.  State,  18  Ohio,  308, 
that  where  the  defendant  obtained  entrance  into  a  house  by  fraud,  with 
intent  to  steal,  he  entered  "forcibly;"  and,  on  the  same  principle,  it 
was  held  in  Turner  v.  State,  1  Ohio  St.  422,  that  where,  b}-  putting  a 
person  in  fear,  money  is  taken,  not  from  his  person,  but  from  his 
presence,  the  monej'  being  under  his  immediate  control,  the  crime  of 
robbery  is  shown,  within  the  meaning  of  the  statute  which  punishes 
taking  money  "  from  the  person  of  another."  ^ 


UNITED   STATES   v.   SMITH. 

Circuit  Court  of  the  United  States.    1792. 

[Report  6  Dane's  Abridgment,  718]. 

Four  indictments  at  common  law  against  the  defendants  for  counter- 
feiting bank  bills  of  the  Bank  of  the  United  States,  passing  them,  and 
having  tools  to  counterfeit,  etc.  Smith  was  found  guilty  of  passing 
bank  bills  of  the  said  bank,  counterfeited. 

1  See  to  the  same  effect,  Hartford  v.  State,  96  Ind.  461  ;  Estes  v.  Carter,  10  la.  400 ; 
Pitcher  v.  People,  16  Mich.  142  ;  Ex  parte  Meyers,  44  Mo.  279  ;  State  v.  De  Wolfe, 
67  Neb.  321  ;  State  v.  Gaunt,  13  Or.  115.  In  a  few  states  the  crime  must  not  only 
lie  made  punishable  but  must  also  be  defined  by  statute  :  Williams  v.  State,  18  Ga. 
356  ;  State  v.  Young,  55  Kan.  349. 

The  criminal  law  of  England  was  adopted  by  statute  in  Texas.  Chandler  v.  State 
2  Tex.  305.  But  it  is  now  provided  that  no  act  shall  be  a  crime  unless  it  is  so  provided 
by  statute.     Ex  parte  Bergen,  14  Tex.  App.  52. 

In  Louisiana  the  common  law  has  also  been  adopted  by  statute  ;  but  the  legislature 
must  declare  and  define  all  crimes.     State  v.  Gaster,  48  La.  Ann.  636. —  Ed. 


8  UNITED   STATES   V.    HUDSON.  [CHAP.  I, 

Parsons  moved  in  arrest  of  judgment,  because  there  was  no  federal 
statute  on  the  subject ;  hence  only  an  offence  at  common  law  ;  and  the 
state  courts  exclusively  have  jurisdiction  of  these  offences. 

The  Court  held,  the  act  incorporating  the  bank  of  the  United  States 
was  a  constitutional  act,  and  that  by  the  Constitution  of  the  United 
States  the  federal  courts  had  jurisdiction  of  all  causes  or  cases  in  law 
and  equity,  arising  under  the  said  constitution  and  laws  of  the  United 
States;  that  this  was  a  case  arising  under  those  laws,  for  those  bills 
were  made  in  virtue  thereof,  though  there  was  no  statute  describing  or 
punishing  the  offence  of  counterfeiting  them  ;  and  therefore  to  counter- 
feit them  was  a  contempt  of  and  misdemeanor  against  the  United 
States,  and  punishable  by  them  as  such. 


UNITED   STATES   v.    HUDSON. 
Supreme  Court  of  the  United  States.     1812. 

[Reported  7  Cnmck,  32.] 

This  was  a  case  certified  from  the  Circuit  Court  for  the  District  of 
Connecticut,  in  which,  upon  argument  of  a  general  demurrer  to  an  m- 
dicttnent  for  a  libel  on  the  President  and  Congress  of  the  United  States, 
contained  in  the  "  Connecticut  Currant  "  of  the  7th  of  May,  1806,  charg- 
ing them  with  having  in  secret  voted  two  millions  of  dollars  as  a  pres- 
ent to  Bonaparte  for  leave  to  make  a  treaty  with  Spain,  the  judges  of 
that  court  were  divided  in  opinion  upon  the  question,  whether  the  Cir- 
cuit Court  of  the  United  States  had  a  common-law  jurisdiction  in  cases 
of  libel. 

Pinkney,  Attorney-General,  in  behalf  of  the  United  States,  and 
Dana,  for  the  defendants,  declined  arguing  the  case. 

The  Court  having  taken  time  to  consider,  the  following  opinion  was 
delivered  (on  the  last  day  of  the  term,  all  the  judges  being  present)  by 
Johnson,  J. 

The  only  question  which  this  case  presents  is,  whether  the  Circuit 
Courts  of  the  United  States  can  exercise  a  common-law  jurisdic^^^ion  in 
criminal  cases.  We  state  it  thus  broadly  because  a  decision  on  a  case 
of  libel  will  appl}'  to  every  case  in  which  jurisdiction  is  not  vested  in 
those  courts  b}'  statute. 

Although  this  question  is  brought  up  now  for  the  first  time  to  be 
decided  by  this  court,  we  consider  it  as  having  been  long  since  settled 
in  public  opinion.  In  no  other  case  for  man}'  jears  has  this  jurisdic- 
tion been  asserted  ;  and  the  general  acquiescence  of  legal  men  shows 
the  prevalence  of  opinion  in  favor  of  the  negative  of  the  proposition. 


SECT.  I.]  UNITED    STATES   V.    HUDSON.  9 

The  course  of  reasoning  which  leads  to  this  conclusion  is  simple, 
obvious,  and  admits  of  but  little  illustration.  The  powers  of  the  gen- 
eral government  are  made  up  of  concessions  from  the  several  States, 
—  whatever  is  not  expressly  given  to  the  former,  the  latter  expressly 
reserve.  The  judicial  power  of  the  United  States  is  a  constituent  part 
of  those  concessions,  — that  power  is  to  be  exercised  b}'  courts  organ- 
ized for  the  purpose,  and  brought  into  existence  b}'  an  effort  of  the 
legislative  power  of  the  Union.  Of  all  the  courts  which  the  United 
States  may,  under  their  general  powers,  constitute,  one  onl}',  the  Su- 
preme Court,  possesses  jurisdiction  derived  immediately  from  the  Con- 
stitution, and  of  which  the  legislative  power  cannot  deprive  it.  All 
other  courts  created  b}'  the  general  government  possess  no  jurisdiction 
but  wliat  is  given  them  by  the  power  that  creates  them,  and  can  be 
vested  with  none  but  what  the  power  ceded  to  the  general  government 
will  authorize  them  to  confer. 

It  is  not  necessary  to  inquire  whether  the  general  government,  in 
any  and  what  extent,  possesses  the  power  of  conferring  on  its  courts 
a  jurisdiction  in  cases  similar  to  the  present.  It  is  enough  that  such 
jurisdiction  has  not  been  conferred  bj'  any  legislative  act,  if  it  does  not 
result  to  those  courts  as  a  consequence  of  their  creation. 

And  such  is  the  opinion  of  the  majority*  of  this  court ;  for  the  power 
which  Congress  possess  to  create  courts  of  inferior  jurisdiction  neces- 
sarily implies  the  power  to  limit  the  jurisdiction  of  those  courts  to  par- 
ticular objects  ;  and  when  a  court  is  created  and  its  operations  confined 
to  certain  specific  objects,  with  what  propriety  can  it  assume  to  itself 
a  jurisdiction  much  more  extended,  in  its  nature  ver}-  indefinite,  appli- 
cable to  a  great  variety  of  subjects,  varying  in  every  State  in  the 
Union,  and  with  regard  to  which  there  exists  no  definite  criterion  of 
distribution  between  the  district  and  Circuit  Courts  of  the  same 
district  ? 

The  only  ground  on  which  it  has  ever  been  contended  that  this 
jurisdiction  could  be  maintained  is,  that  upon  the  formation  of  any 
political  body  an  implied  power  to  preserve  its  own  existence  and  pro- 
mote the  end  and  object  of  its  creation  necessaril}'  results  to  it.  But 
without  examining  how  far  this  consideration  is  applicable  to  the  pecu- 
liar character  of  our  Constitution,  it  may  be  remarked  that  it  is  a  prin- 
ciple by  no  means  peculiar  to  the  common  law.  It  is  coeval  probabh' 
with  the  first  formation  of  a  limited  government,  belongs  to  a  system 
of  universal  law.  and  may  as  well  support  the  assumption  of  many 
other  powers  as  those  more  peculiarly  acknowledged  by  the  common 
law  of  England. 

But  if  admitted  as  applicable  to  the  state  of  things  in  this  country, 
the  consequence  would  not  result  from  it  which  is  here  contended  for. 
If  it  may  communicate  certain  implied  powers  to  the  general  govern- 
ment, it  would  not  follow  that  the  courts  of  that  government  are  vested 
with  jurisdiction  over  any  particular  act  done  b}-  an  individual  in  sup- 
posed violation  of  the  peace  and  dignity  of  the  sovereign  power.     The 


10  BARKER   V.    PEOPLE.  [CHAP.  I. 

legislative  autliorit}'  of  the  Union  must  first  make  an  act  a  crime,  affix 
a  punishment  to  it,  and  declare  the  court  that  shall  have  jurisdiction 
of  the  offence. 

Certain  implied  powers  must  necessanl}'  result  to  our  courts  of  jus- 
tice from  the  nature  of  their  institution  ;  but  jurisdiction  of  crimes 
against  the  State  is  not  among  those  powers.  To  tine  for  contempt, 
imprison  for  contumacy,  enforce  the  observance  of  order,  etc.,  are 
powers  which  cannot  be  dispensed  with  in  a  court,  because  the3'  are 
necessary  to  the  exercise  of  all  otliers  ;  and  so  far  our  courts  no  doubt 
possess  powers  not  immediutcl}-  derived  from  statute  ;  but  all  exercise 
of  criminal  jurisdiction  in  common-law  cases  we  are  of  opinion  is  not 
within  their  implied  powers.^ 


BARKER   V.   PEOPLE. 
Court  of  Errors,  New  York.     1824. 

[Reported  3   Cowen,  686.] 

Error  to  the  Supreme  Court.  In  February,  1822,  Jacob  Barker, 
the  plaintiff  in  error,  was  indicted  in  the  Court  of  General  Sessions  of 
the  Peace,  of  the  city  and  county  of  New  York,  for  sending  a  challenge 
to  David  Rogers  to  fight  a  duel.  The  indictment  contained  five  counts ; 
the  first  four  of  which  alleged  the  offence  to  have  been  committed  by 
Barker  in  the  city  of  New  Y'ork,  on  various  days,  in  the  months  of 
Januar}'  and  February*,  1822,  "  against  the  form  of  the  statute  in  such 
case  made  and  provided,"  being  founded  on  the  act  "to  suppress 
duelling,"  passed  the  5th  of  November,  1816.  The  fifth  count  was  for  a 
similar  offence  at  common  law.  The  plaintiff  in  error  was  tried  on  the 
indictment,  at  the  Court  of  General  Sessions,  held  in  the  cit}'  of  New 
York,  in  May,  1822.  The  jur}'  rendered  a  general  verdict  of  guilt}-, 
and  the  District  Attorne}*  having  entered  a  nolle  prosequi  on  the  fifth 
count  (for  the  offence  at  common  law),  the  Court,  thereupon,  gave 
judgment  that  the  plaintiff  in  error,  "for  the  offence  aforesaid,  as 
charged  in  the  first,  second,  third,  and  fourth  counts  of  the  said  indict- 
ment, whereof  he  is  convicted,  be  incapable  of  holding,  or  being  elected 
to  any  post  of  profit,  trust,  or  emolument,  civil  or  military,  under  the 
State  of  New  York." 

A  writ  of  error  was  brought,  on  this  judgment,  to  the  Supreme  Court, 
which,  in  January  term,  1823,  affirmed  the  judgment  of  the  General 

1  The  common  law  defines  the  terms  and  prevails  in  all  questions  except  jurisdiction 
to  punish  for  crimes,  U.  S.  v.  Caril.     105  U.  S.  611. 

The  common  law  as  to  crime  prevails  in  the  District  of  Columbia.  Tyner  t'.  U.  S  . 
23  App.  D.  C.  324.  —  Ed. 


SECT.  I.]  BARKER    V.    PEOPLE.  11 

Sessions.     {Vide  20  John.  Rep.  457  S.  C,  which  contains  the  reasons 
assigned  to  this  Court  in  support  of  tlie  judgment.)  ^ 

Sanford,  Chancellok.  The  first  section  of  the  act  of  the  fifth  of 
November  1816,  to  suppress  duelling,  prescribes,  that  "the  person 
convicted  shall  be  incapable  of  holding  or  being  elected  to  any  post 
of  profit,  trust,  or  emolument,  civil  or  military,  under  this  state :  " 
and  the  objection  now  made  is,  that  this  punishment  is  inconsistent 
with  the  constitution. 

The  constitution  of  the  United  States  provides  that  cruel  and  unusual 
punishments  shall  not  be  inflicted.  The  power  of  the  legislature  in 
the  punishment  of  crimes  is  not  a  special  grant,  or  a  limited  authority 
to  do  any  particular  thing,  or  to  act  in  any  particular  manner.  It  is  a 
part  of  ''the  legislative  power  of  this  state,"  mentioned  in  the  first 
sentence  of  the  constitution.  It  is  the  sovereign  power  of  a  state 
to  maintain  social  order  by  laws  for  the  due  punishment  of  crimes.  It 
is  a  power  to  take  life,  and  liberty,  and  all  the  rights  of  both,  when  the 
sacrifice  is  necessary  to  the  peace,  order,  and  safety  of  the  community. 
This  general  authority  is  vested  in  the  legislature,  and  it  is  one  of  the 
most  ample  of  their  powers,  its  due  exercise  is  among  the  highest  of 
their  duties.  When  an  offender  is  imprisoned,  he  is  deprived  of  the 
exercise  of  most  of  the  rights  of  a  citizen  ;  and  when  he  suffers  death, 
all  his  rights  are  extinguished.  The  legislature  have  power  to  prescribe 
imprisonment  or  death  as  the  punishment  of  any  offence.  The  rights 
of  a  citizen  are  thus  subject  to  the  power  of  the  state  in  the  punishment 
of  crimes  ;  and  the  restrictions  of  the  constitution  upon  this,  as  upon 
all  the  general  powers  of  the  government,  are,  that  no  citizen  shall  be 
deprived  of  his  rights,  unless  by  the  law  of  the  land  or  the  judgment  of 
his  peers,  and  that  no  person  shall  be  deprived  of  life,  liberty,  or 
propert}-,  without  due  process  of  law. 

The  constitution  has,  in  one  case,  limited  punishment.  When  an  officer 
of  the  state  is  convicted  upon  impeachment,  the  judgment  cannot  ex- 
tend farther  than  removal  from  office  and  disqualification  to  hold  offlce. 
This  provision  stands  here  a  restriction,  not  an  authority.  As  the  pun- 
ishment is  not  to  extend  farther  than  removal  and  disqualification,  the 
sense  of  the  terms,  and  the  known  course  of  proceedings  in  the  country 
from  which  we  derive  the  history  and  practice  of  impeachments,  both 
show  that  this  provision  is  a  mere  limitation  of  a  greater  power,  a 
power  to  inflict  other  punishments,  as  well  as  removal  and  disqualifica- 
tion. Impeachments  of  public  officers,  a  peculiar  species  of  accusation 
made  and  tried  in  a  peculiar  manner,  are  to  extend  no  farther  in  their 
effect  than  to  discharge  an  officer  from  his  trust,  and  to  render  him 
incapable  of  holding  office  ;  but  if  the  cause  for  which  the  officer  is  thus 
punished  is  a  public  offence,  he  may  be  also  indicted,  tried,  and  pun- 
ished according  to  law  ;  the  constitution  leaving  the  definition  of  the 
offence  and  its  particular  punishment  in  this  case,  as  in  all  the  others, 

1  Arguments  of  counsel  and  parts  of  the  opinion  of  the  court  are  omitted.— Ed. 


12  BAKKER   V.    PEOPLE.  [CHAP.  I. 

to  the  general  power  of  the  legislature.  This  part  of  the  constitutioD 
concerning  judgment  on  impeachments  is  therefore  a  limitation  of  the 
power  of  the  court  for  the  trial  of  impeachments,  and  not  a  restriction 
upon  the  general  power  of  the  legislature  over  crimes. 

The  power  of  the  state  over  crimes  is  thus  committed  to  the  legisla- 
ture without  a  definition  of  any  crime,  without  a  description  of  any 
punishment  to  be  adopted  or  to  be  rejected,  and  without  any  direction 
to  the  legislature  concerning  punishments.  It  is,  then,  a  power  to  pro- 
duce the  end  by  adequate  means  ;  a  power  to  establish  a  criminal  code, 
with  competent  sanctions;  a  power  to  define  crimes  and  prescribe 
punishments  by  laws  in  the  discretion  of  the  legislature. 

But  though  no  crime  is  defined  in  the  constitution,  and  no  species  of 
punishment  is  specially  forbidden  to  the  legislature,  yet  there  are  nu- 
merous regulations  of  the  constitution  which  must  operate  as  restrictions 
upon  this  general  power.  The  whole  constitution  must  be  supported, 
and  all  its  powers  and  rules  must  be  reconciled  into  concord.  A  law 
which  should  declare  it  a  crime  to  exercise  any  fundamental  right  of  the 
constitution,  as  the  right  of  suffrage,  or  the  free  exercise  of  religious 
worship,  would  infringe  an  express  rule  of  the  S3'stem,  and  would  there- 
fore not  be  within  the  general  power  over  crimes.  Particular  punish- 
ments would  also  encroach  upon  rules  and  rights  established  by  the 
constitution.  Though  the  legislature  have  an  undoubted  power  to 
prescribe  capital  punishment  and  other  punishments  which  produce  a 
disability  to  enjo}'  constitutional  rights,  3et  a  mere  deprivation  of 
rights  would,  even  as  a  punishment,  be,  in  many  cases,  repugnant  to 
rules  and  rights  expressl}'  established.  Many  rights  are  plainly  ex- 
pressed, and  intended  to  be  fundamental  and  inviolable  in  all  circum- 
stances. A  law  enacting  that  a  criminal  should,  as  a  punishment  for 
his  offence,  forfeit  the  right  of  trial  b}'  jury,  would  contravene  the 
constitution ;  and  a  deprivation  of  this  right  could  not  be  allowed  in 
the  form  of  a  punishment.  Any  other  right  thus  secured,  as  universal 
and  inviolable,  must  equally  prevail  against  the  general  power  of  the 
legislature  to  select  and  prescribe  punishments.  These  rights  are  se- 
cured to  all ;  to  criminals  as  well  as  to  others ;  and  a  punishment 
consisting  solely  in  the  deprivation  of  such  a  right  would  be  an  evident 
infringement  of  the  constitution.  Any  punishment  operating  as  an 
infringement  of  some  rule  thus  expressly  established,  or  some  right 
thus  expressly  secured,  would  be  unconstitutional ;  and  all  punishments 
which  do  not  subvert  such  rules  and  rights  of  the  constitution  are 
within  the  scope  and  choice  of  the  legislative  power. 

But  while  many  rights  are  consecrated  as  universal  and  inviolable, 
the  right  of  elegibility  to  office  is  not  so  secured.  It  is  not  one  of  the 
express  rules  of  the  constitution,  and  is  not  declared  as  a  right,  or  men- 
tioned in  term&  as  a  principle,  in  any  part  of  the  instrument. 
Important  as  this  right  is,  it  stands,  as  tiie  right  to  life  itself  stands, 
subject  to  the  general  power  of  the  legislature  over  crimes  and 
Dunishments. 


SKCT.  I.]  LEDGERWOOD   V.    STATE.  13 

It  has  been  strongly  urged  that  the  power  to  prescribe  this  species 
of  punishment  may  be  abused.  Tliat  such  a  power  may  be  abused 
cannot  bo  denied,  since  all  power  entrusted  to  men  is  subject  to  abuse. 
Tlie  power  to  declare  crimes  and  prescribe  punishments  is  high,  indefi' 
nite,  and  discretionary,  and  therefore  affords  ample  room  for  abuse. 
Yet  the  legislature  by  their  acts,  instead  of  anj-  tendency  to  severity, 
show  a  strong  disposition  to  mildness  in  the  use  of  their  power  over 
crimes  and  punishments.  That  disqualification  to  hold  public  trusts 
will  become  a  frequent  punishment  seems  not  probable  ;  the  legis- 
lature having  hitherto  adopted  this  punishment  only  in  the  two 
cases  of  briber}'  and  duels.  But  whatever  may  be  the  danger  of  abuse, 
the  punishment  itself  is  not  unconstitutional.  The  remed}' for  abuse  of 
the  legislative  power,  in  enacting  laws  which  maj-  be  unwise,  while  they 
are  not  unconstitutional,  is  not  in  tlie  courts  of  justice.  It  is  found  in 
other  parts  of  the  system,  in  frequent  elections  and  in  the  due  course 
of  the  legislative  power  itself,  which  alike  enacts  and  repeals  laws  in 
jjursuance  of  public  opinion.  That  this  punishment  is  little  consonant 
to  the  genius  of  our  institutions  ;  that  there  is  an  ample  choice  of  pun- 
ishments for  crimes  witliout  adopting  this  ;  that  the  electors  and  the 
appointing  powers  should  enjoy  their  free  choice  for  public  stations, 
without  legal  exclusions  even  for  crimes,  are  reasons  of  great  force; 
but  they  are  reasons  upon  which  the  legislature  must  decide. 

My  opinion  upon  the  whole  case  is.  that  the  punisliment  of  incapac- 
ity to  hold  office,  prescribed  by  the  act  to  suppress  duelling,  is 
not  inconsistent  with  the  constitution ;  and  that  this  cause  has  been 
rightly  determined  by  the  courts  through  which  it  has  passed. 

Bowman,  Burt,  Clark,  Dudley,  Earll,  Gardiner,  Height, 
Lynde,  Mallory,  M'Call,  M'Intyre,  Redfield,  Sudam,  Thorn, 
Ward,   Wooster,    and   Wright,  Senators,  concurred. 

Ogden,  Senator,  dissented. 


LEDGERWOOD    /'.   STATE. 
-  Supreme  Court  of  Indiana.     1893. 
[Reported  134  Ind.  81]. 

McCabe,  J.  —  The  appellant  was  convicted  by  the  Circuit  Court  on 
a  plea  of  guilty  on  an  indictment  charging  him  and  Samuel  Harbin  with 
arson,  and  each  was  sentenced  to  the  State's  prison  for  the  period  of 
seventeen  years,  and  the  court  fined  each  of  them  one  hundred  dollars, 
and  rendered  judgment  accordingly.     The  appellant  alone  appeals. 

The  errors  assigned  are  : 

1  and  2.  That  the  indictment  does  not  state  facts  sufficient  to  con.' 
atitute  a  public  offence. 

■3.   That  the  court  had  no  jurisdiction  of  the  subject. 


14  LEDGERWOOD   V.    STATE.  [CHAP.  L 

4.  That  the  court  had  no  jurisdiction  over  the  person  of  appellant. 

5.  That  there  was  error  in  overruling  appellant's  motion  to  be 
discharged. 

6.  That  there  was  error  in  permitting  the  state  to  file  counter-motions 
and  affidavits  to  appellant's  motion  for  discharge. 

7.  That  there  was  error  in  overruling  the  motion  to  strike  out  parts 
of  said  counter-affidavits. 

8.  That  there  was  error  in  overruling  appellant's  motion  in  arrest  of 
judgment. 

9.  That  there  was  error  in  overruling  appellant's  motion  for  a  new 
trial. 

There  were  two  counts  in  the  indictment.  Therefore,  if  either  count 
was  sufficient,  there  was  no  error  in  overruling  the  motion  in  arrest  ot 
judgment.     Br^'ant  i\  State,  106  liid.  549. 

The  first  count  reads  as  follows,  omitting  the  formal  part:  "  Tliat 
Bazil  Ledgerwood  and  Samuel  Harbin,  on  the  7th  day  of  October, 
1891,  at  and  in  the  county  of  Daviess,  in  the  State  of  Indiana,  did 
then  and  there  unlawfully,  wilfully,  maliciously,  and  felonious!}'  set  on 
fire  and  attempt  to  burn  down  and  destroy  the  county  court-liouse, 
situate  in  the  cit\'  of  Washington,  in  Daviess  county,  in  the  State  of 
Indiana,  which  county  court-house  was  then  and  there  the  property 
of  Daviess  county,  and  then  and  there  of  the  value  of  fifty  thousand 
dollars." 

We  think  this  count  is  sufficient  in  its  statement  of  the  facts  consti- 
tuting the  ofll*ence  defined  by  section  1927,  R.  S.  1881,  as  amended  by 
the  act  approved  March  9th,  1891,  to  withstand  a  motion  in  arrest. 
Acts  1891,  p.  402. 

It  is  insisted  by  appellant's  counsel  that  the  latter  act  is  invalid, 
because  it  does  not  define  the  crime  of  arson,  and  in  support  of  that 
contention  they  cite  the  statute  which  provides  that  "Crimes  and  mis- 
demeanors shall  be  defined  and  puuisliment  therefor  fixed  by  statutes 
of  this  State,  and  not  otherwise."     Section  237,  R.  S.  1881. 

This  statute  was  enacted  in  1852  as  the  second  section  of  an  act 
entitled  "  An  act  declaring  the  law  governing  this  State  "  approved 
May  31st,  1852.  Section  G05,  1  R.  S.  1876.  All  that  part  of  the  act 
relating  to  what  laws  were  in  force,  and  especiallj'  that  part  adopting 
the  English  common  lav;,  with  certain  exceptions,  had  substantially 
been  in  force  in  this  state  before.  Indeed,  the  English  common  law, 
with  the  exceptions  mentioned,  had  been  adopted  in  this  state  as  far 
back  as  the  year  1795  by  the  Governor  and  judges  of  the  then  Terri- 
tory-, and  that  provision  was  substantialh'  reenacted  b}'  the  Territorial 
Legislature  in  1807,  and  has  been  substantialh'  reenacted  at  every 
revision  of  our  statute  since  that  time.  Stevenson  v.  Cloud,  5  Blackf. 
92.  But  in  the  act  of  1852,  above  referred  to,  the  provision  as  to  the 
definition  of  crimes  and  misdemeanors  was  added  for  the  first  time, 
it  being  the  first  provision  of  the  kind  ever  adopted  in  this  state. 

In  support  of  their  construction  of  the  statute  above  cited,  appellant's 


SECT,  ij  LEDGERWOOD    V.    STATE.  15 

counsel  cite  Rosenbaum  v.  State,  4  Ind.  599 ;  Smoot  v.  State,  18  Ind. 
18  ;  State  v.  President,  etc.,  Ohio,  etc.,  R.  R.  Co.,  23  Ind.  362  ;  State  v. 
Johnson,  69  Ind.  85  ;  Stephens  v.  State,  107  Ind.  185. 

We  have  examined  these  cases,  and  find  them  not  at  all  in  point,  for 
reasons  so  obvious  that  further  comment  on  them  is  unnecessary. 

The  appellant's  attorneys  further  seek  to  support  their  contention  by 
citing  Hackney  v.  State,  8  Ind.  494;  Jennings  v.  State,  16  Ind.  335; 
and  Marvin  v.  State,  19  Ind.  181.  It  must  be  conceded  that  these 
cases  all  directly  support  appellant's  contention,  and  hold  that  a 
statute  that  does  not  define  a  public  ofl'ence  with  some  degree  of 
minuteness  is  void  because  not  in  conformit}-  to  the  first  statute  above 
quoted.  But  these  cases,  and  others  like  them,  were  all  overruled  by 
this  court  in  Wall  v.  State,  23  Ind.  150.  That  case  has  been  followed 
by  an  unbroken  line  of  decisions  by  this  court  until  the  present  time. 
But  the  ground  upon  which  Fkazer,  Judge,  speaking  for  the  whole 
court,  placed  the  decision  in  that  case,  has  given  rise  to  some  confu- 
sion as  to  the  real  condition  of  our  criminal  code.  That  able  jurist  in 
that  case  said  "  That  the  Legislature  can  not  in  such  a  matter  impose 
limits  or  restrictions  upon  its  own  future  action,  and  that  when  two 
statutes  are  inconsistent,  the  last  enactment  stands  as  the  law,  are  ver}- 
plain  propositions,  which  we  presume  will  never  be  controverted.  It 
follows  that  the  act  of  May  31st,  if  in  conflict  with  the  act  of  June  10th 
(which  was  the  date  of  the  enactment  of  the  criminal  code  of  1852), 
is  so  far  repealed  by  the  latter  act.  To  hold  that  the  legislature  may, 
by  mere  exercise  of  legislative  power,  say  what  a  future  legislature 
may  or  may  not  do,  would  be  but  to  declare  that  the  whole  legis- 
lative power  of  the  government  ma}-  be  lawfully  annihilated,  and  the 
government  summarily  brought  to  an  end  by  the  action  of  one  of  its 
departments." 

While  the  principle  thus  announced  was  correct  in  the  abstract,  yet 
it  was  not  applicable  to  the  case,  and  did  not  furnish  the  true  and  real 
reason  that  made  the  conclusion  reached  in  the  case  sound  and  good 
law.  The  court  went  on  to  hold,  that  inasmuch  as  the  statute  above 
quoted  was  enacted  before  the  criminal  statute  then  in  question  was 
enacted,  which  it  was  complained  did  not  define  the  crime  sufHciently  ; 
that  the  last  act,  the  criminal  statute,  in  so  far  as  it  conflicted  with  the 
first,  operated  as  a  repeal  of  the  statute  above  quoted. 

As  before  stated,  this  decision  has  been  followed  by  a  large  number 
of  cases  in  which  the  same  reason  is  given  for  the  ruling,  and,  finall.y, 
in  Hood  v.  State,  56  Ind.  263,  and  Ardery  v.  State,  56  Ind.  328,  it  was 
held  that  the  section  of  the  statute  above  quoted  was  repealed  by  the 
act  creating  crimes  and  misdemeanors.  And  though  that  section  has 
not  since  been  reenacted  by  the  legislature,  and  the  decisions  of 
this  court  in  Hood  v.  State,  st/pra,  and  Ardery  v.  State,  supra,  have 
not  been  overruled,  tliis  court  has,  in  Jones  v.  State,  59  Ind.  229,  and 
Stephens  v.  State,  107  Ind.  185,  said  of  this  section,  that  ''That  pro- 
vision of  law  still  continues  in  force."     Other  cases,  perhaps,  make  the 


16  LEDGERWOOD  V.    STATE.  [CHAP.  I. 

same  declaration.  How  such  a  conclusion  is  reached  neither  of  the 
learned  judges,  Howk  and  Niblack,  delivering  the  opinions,  respec- 
tively, in  those  cases,  tells  us.  The  truth  is,  the  long  line  of  cases 
culminating  in  the  two  cases  in  56  Ind.,  supra,  not  being  overruled, 
and  the  statute  therein  held  to  be  repealed,  never  having  been  reenacted, 
it  is  difficult  to  see  how  it  still  remained  in  force. 

In  the  case  in  107  Ind.,  supra,  Niblack,  J.,  cites  in  support  of  the 
opinion  Hacknej'  v.  State,  supra,  which,  as  we  have  seen,  had  long 
before  been  overruled,  and,  as  we  now  hold,  correctly  overruled.  The 
inevitable  result  is,  if  the  statute  mentioned  has  been  repealed,  as  this 
court  held  in  the  cases  in  56  Ind.,  supra,  it  makes  a  great  difference 
in  our  criminal  law.  With  that  statute  repealed,  instead  of  public 
offences  being,  as  is  generally  supposed,  of  statutory  creation  exclu- 
sivel}',  we  have  all  common-law  offences  as  well  as  those  of  statutory 
origin  as  parts  of  our  criminal  law. 

Such  a  result  as  that,  it  is  well  understood,  is  very  undesirable  with 
the  courts,  the  legal  profession,  and  the  people.  This  undesirable 
result  has  been  brought  about  by  assigning  a  wrong  reason  for  a  right 
decision,  in  Wall  v.  State,  stipra,  and  following  that  reason  to  its 
legitimate  result  in  the  subsequent  cases.  The  section  of  the  statute 
in  question  was  never  intended,  bj-  the  legislature  that  enacted  it,  to 
place  a  restriction  upon  the  action  of  future  legislatures,  or  even  upon 
itself,  as  to  the  manner  of  defining  crimes  and  misdemeanors.  This 
is  apparent  when  we  take  into  consideration  the  history  of  the  whole 
act  in  which  this  provision  is  found  and  the  evils  sought  to  be  remedied 
by  the  provision. 

As  we  have  already  seen,  that  part  of  the  act  adopting  the  English 
common  law,  which  was  enacted  by  the  Governor  and  judges  of  th<- 
Indiana  Territory  in  1795,  and  reenacted  in  all  the  revisions  of  ou' 
statutes  substantially  as  it  now  is,  until  1852,  and  then  for  the  firs' 
time  the  provision  in  question  was  added  to  that  act.  Prior  to  that 
time  the  common  law  as  to  crimes  and  misdemeanors  was  in  force, 
because  it  was  so  enacted  by  adopting  the  common  law  by  the  legisla- 
tive authority  of  the  state  without  exeception  of  limitation  as  to  crimes 
and  misdemeanors.     State  v.  Bertheol,  6  Blackf  474. 

It  was  undoubtedly  the  intention  of  the  legislature  in  1852,  by  add- 
ing the  provision  under  consideration  to  the  act  adopting  the  commou 
law,  to  adopt  a  new  and  different  system  of  criminal  law  from  that 
which  had  formerly  prevailed ;  it  was  the  intention  to  modify  the  act 
adopting  the  common  law  so  as  not  to  adopt  that  part  of  it  relating 
to  crimes  and  midemeanors.  It  was  the  evil  of  the  common  law  as  to 
criminal  offences  which  were  so  great  in  number,  and  sometimes  very 
shadowy  and  unsubstantial,  imposing  upon  the  people  and  the  courts 
the  necessity  of  wading  through  volumes  of  abstruse  learning  to  ascer- 
tain what  acts  were  criminal  that  the  legislature  proposed  to  rid  the 
people  of.  That  could  be,  and  was,  accomplished  by  not  adopting  the 
common  law  as  to  crimes  and  misdemeanors.  It  was  desirable  and 
necessary  to  the  public  weal  to  adopt   the  common  law  as  to  other 


SECT.  I.]  LEDGERWOOD   V.   STATE.  17 

subjects.  Therefore,  the  intention  as  to  public  offences  was  made 
manifest  and  effectual  by  adding  the  provision  to  the  act  adopting 
the  common  law  that  "  crimes  and  misdemeanors  shall  be  defined, 
and  pimishraent  therefor  fixed,  by  statutes  of  this  state  and  not 
otherwise." 

It  was  not  for  the  purpose  of  securing  a  more  minute  definition  of 
crimes  and  misdemeanors  than  the  common  law  afforded,  that  this  pro- 
vision was  added,  but  it  was  to  get  rid  of  common-law  offences  entirely 
b\-  not  adopting  that  part  of  the  common  law.  If  the  common  law 
had  not  been  adopted  at  all,  in  whole  or  in  part,  the  provision  in  ques- 
tion would  have  had  no  significance  or  force  whatever.  Because,  if  no 
part  of  the  common  law  had  been  adopted,  the  provision  in  question 
would  have  been  the  law  without  being  enacted.  If  there  was  no 
common  law  of  any  kind  in  force,  crimes  and  misdemeanors  must, 
of  necessit}',  be  defined  and  punishment  therefor  fixed  by  statute^! 
of  this  state  and  not  otherwise.  Therefore,  tliis  provision  was  only 
made  necessar}-  to  secure  a  purely  statutor}-  criminal  code  because 
of  the  adoption  of  the  common  law.  This  view  of  the  provision 
relieves  it  from  the  charge  that  it  sought  to  trammel  future  legis- 
latures, requiring  of  them  any  degree  of  minuteness  in  defining  crimes  ; 
indeed,  no  act  subsequent  to  that,  however  vague  and  general  in  its 
definition  of  public  offences,  is  at  all  inconsistent  with  that  act;  on  the 
contrarv,  all  such  acts  are  in  harmony  with  it.  It  has  been  held,  and 
we  think  proper!}'  under  that  statute,  that  the  crime  may  be  designated 
b}'  the  statute  without  an}'  definition,  and  the  punishment  fixed,  and 
the  courts  would  define  the  crime  by  the  aid  of  common-law  definitions, 
and  the  general  import  of  the  language  employed.  Hedderich  v.  State, 
101  Ind.  564;  State  v.  Berdetta,  73  Ind.  185. 

We  think,  therefore,  it  was  error  to  hold  that  the  enactment  of 
criminal  statutes  without  specifically  defining  the  crimes  designated 
thei'ein  repealed  the  provision  in  question  or  even  modified  it.  And 
while  a  proper  conclusion  was  reached  in  each  of  the  two  cases  in 
56  Ind.,  supr'a,  and  the  cases  leading  up  to  them,  yet  they  were  placed 
on  wrong  grounds,  and  so  far  as  they  hold  that  the  provision  in  ques- 
tion had  been  repealed  or  modified,  the}'  are  overruled,  and  we  ad- 
judge that  said  provision  is  still  in  force,  unrepealed  and  unmodified. 
And,  therefore,  that  we  have  no  common-law  offences  in  Indiana,  and 
that  the  statute  under  which  this  prosecution  is  waged,  which  reads 
as  follows  :  "  whoever  wilfully  and  maliciously  burns  or  attempts  to 
burn  an}'  dwelling-house  or  other  building,  finished  or  unfinished,  occu- 
pied or  unoccupied,  whether  the  building  be  used  or  intended  for  a 
dwelling-house  or  any  other  purpose  ;  "  .  .  .  "  the  property  so  burned 
or  attempted  to  be  burned,  being  of  the  value  of  twenty  dollars  or 
upwards,  and  being  the  property  of  another,  ...  is  guilty  of  arson, 
and  upon  the  conviction  thereof  shall  be  imprisoned  in  the  state  prison 
not  more  than  twenty-one  years,  nor  less  than  one  year,  and  fined  not 
exceeding  double  the  value  of  the  property  burned,  .  .  ."  is  not  invalid 
for  indefiniteness. 


18  COMMONWEALTH   V.   MARSHALL.  [CHAP.  L 

COMMONWEALTH   v.   MARSHALL. 
Supreme  Judicial  Court  of  Massachusetts.     1831. 

[Reported  11  Pick.  350.] 

At  April  term  1831  of  this  Court,  in  the  oountA'  of  Franklin,  the 
defendants  were  indicted  for  a  misdemeanor  in  disinterring  a  dead  body 
on  the  20th  of  Febrnar\-  of  the  same  year,  contra  formam  statuti.  The 
defendants  pleaded  nolo  contendere,  and  afterwards  moved  in  arrest  of 
judgment,  for  the  following  reasons  :  1.  Because  the  offence  charged  in 
the  indictment  is  therein  stated  to  have  been  committed  in  violation  of 
the  statute  passed  March  2,  1815  (St.  1814,  c.  175),  which  was  re- 
pealed by  the  statute  of  Feb.  28,  1831  (St.  1830,  c.  57),  without  any 
saving  or  excepting  clause  whatever ;  and,  2,  Because  no  offence  now 
known  by  the  laws  of  this  commonwealth,  is  therein  described. 

Shaw,  C.  J.,  delivered  the  opinion  of  the  Court.  This  indictment 
cannot  be  maintained,  consistently  with  the  decision  of  the  Court  last 
year,  in  the  case  in  this  county,  of  Commonwealth  v.  Cooley,  10  Pick. 
37.  In  that  case  it  was  held,  that  the  statute  of  1814,  containing  a 
series  of  provisions  in  relation  to  the  whole  subject-matter  of  the  dis- 
interment of  dead  bodies,  had  superseded  and  by  necessary  implica- 
tion repealed  the  provisions  of  the  common  law  on  the  same  subject. 
If  it  be  true,  as  contended,  that  as  a  general  rule  the  repeal  of  a  re- 
pealing law,  revives  the  pre-existing  law,  it  would  be  difficult  to  main- 
tain that  such  a  clause  of  repeal,  in  a  statute  containing  a  series  of 
provisions,  revising  the  whole  subject,  and  superseding  the  existing 
statute,  would  revive  the  pre-existing  provisions  of  the  common  law. 
But  were  that  point  conceded,  as  contended  for,  it  would  not  aid  this 
indictment. 

In  the  case  supposed,  the  common  law  would  not  be  in  force  during 
the  existence  of  the  statute,  and  if  revived  by  its  repeal,  such  revival 
would  take  effect  only  from  the  time  of  such  repeal. 

It  is  clear,  that  there  can  be  no  legal  conviction  for  an  offence,  unless 
the  act  be  contrary  to  law  at  the  time  it  is  committed  ;  nor  can  there 
be  a  judgment,  unless  the  law  is  in  force  at  the  time  of  the  indictment 
and  judgment.  If  the  law  ceases  to  operate,  by  its  own  limitation  or  by 
a  repeal,  at  any  time  before  judgment,  no  judgment  can  be  given. 
Hence,  it  is  usual  in  every  repealing  law  to  make  it  operate  prospec- 
tively only,  and  to  insert  a  saving  clause,  preventing  the  operation  of 
the  repeal,  and  continuing  the  repealed  law  in  force,  as  to  all  pending 
prosecutions,  and  often  as  to  all  violations  of  the  existing  law  already 
committed. 

These  principles  settle  the  present  case.  By  the  statute  1830,  c.  57, 
§  6,  that  of  1814  was  repealed  without  any  saving  clause.  The  act 
charged  upon  the  defendants  as  an  offence  was  done  after  the  passing 


SECT.  L]  HALFIN   V.   STATE.  19 

of  the  statute  of  1814,  and  before  that  of  1830.  The  act  cannot  be 
punished  as  an  offence  at  common  law,  for  that  was  not  in  force  during 
the  existence  of  the  statute  ;  nor  by  the  statute  of  1814,  because  it  has 
been  repealed  without  any  saving  clause;  nor  by  the  statute  of  1830, 
for  the  act  was  done  before  that  statute  was  passed.  No  judgment 
therefore  can  be  rendered  against  the  defendants,  on  this  indictment. 

Judgment  arrested. 


HALFIN  V,  STATE. 

Court  of  Appeals  of  Texas.     1878. 

[Reported  5  Tex.  App.  212.] 

Winkler,  J.  The  appellant  is  prosecuted  by  information  in  the 
County  Court,  and  was  convicted  on  a  charge  of  having  violated  the 
provisions  of  the  act  of  the  legislature  of  1876,  entitled  "An  act  to 
prohibit  the  sale,  exchange,  or  gift  of  intoxicating  liquors  in  any 
count}',  justice's  precinct,  cit}',  or  town  in  this  state  that  may  so  elect ;" 
prescribing  the  mode  of  election,  and  affixing  a  punishment  for  its 
violation,  —  commonly  known  as  the  local-option  law.  Acts  1876, 
p.  26. 

It  is  not  disputed  that,  prior  to  the  alleged  commission  of  the  offence 
charged  against  the  appellant,  Caldwell  County  had,  by  vote  in  accord- 
ance with  the  provisions  of  the  act,  declared  that  liquors  should  not 
be  sold  in  the  county  except  as  authorized  by  the  act  aforesaid.  But 
it  is  insisted  on  in  behalf  of  the  appellant  that,  since  this  prosecution 
was  commenced,  another  election  has  been  held  in  the  county  under  the 
provisions  of  the  act  in  question,  by  which  it  was  determined  that  the 
act  should  no  longer  be  enforced  so  as  to  prohibit  the  sale  of  liquors  in 
the  count}' ;  and  that  the  effect  of  this  last  election  is  to  relieve  from 
prosecution  and  punishment  those  who  had,  prior  thereto,  been  accused 
of  violating  its  provisions. 

It  is  provided,  in  the  third  section  of  the  act,  for  the  holding  of  a 
special  session  of  the  Commissioners'  Court,  for  the  purpose  of  open- 
ing the  polls  and  counting  the  votes,  and  directing  that  "  if  a  majority 
of  the  votes  cast  are  for  prohibition,  said  court  shall  immediately  make 
an  order  declaring  the  result  of  said  vote,  and  absolutely  prohibiting 
the  sale  of  intoxicating  liquors  within  the  prescribed  bounds  (except 
for  the  purposes  specified  in  section  1  of  this  act)  until  such  time  as 
the  qualified  voters  therein  may,  at  a  legal  election  held  for  the  purpose, 
by  a  majority  vote  decide  otherwise."  The  section  goes  on  to  prescribe 
the  manner  of  making  publication  of  the  result  and  the  order  of 
prohibition. 

We  are  of  opinion  that  the  words  in  the  third  section,  "until  such 
time  as  the  qualified  voters  therein  may,  at  a  legal  election  held  for  the 


20  STEVENS  V.    DIMOND.  [CHAP.  1, 

purpose,  b}'  a  raajorit}'  vote  decide  otherwise,"  must  be  construed  as 
an  authority-  giving  the  voters  interested  an  opportunity  to  decide  — 
after  the  expiration  of  twelve  months,  mentioned  in  the  fourth  section 
—  hy  vote  whether  the  prohibition  named  in  the  first  section  shall  be 
longer  continued  or  not,  and  that  a  majority  vote  at  this  second  elec- 
tion would  annul,  from  the  time  it  is  held  and  the  result  declared  and 
published,  the  proliibition  provided  for  in  the  first  section  of  the  act. 

It  being  made  to  appear  that  the  second  election  contemplated  in 
the  act  has  been  held,  and  that  it  has  resulted  in  a  majority  vote 
against  prohibition,  we  are  of  opinion  that  there  is  no  law  now  in  force 
in  Caldwell  County  by  which  persons  who  may  be  charged  under  the 
act  can  lawfuU}-  be  punished. 

"  The  repeal  of  a  penal  law,  when  the  repealing  statute  substitutes 
no  other  penalty,  will  be  held  to  exempt  from  punishment  all  persons 
who  have  offended  against  the  provisions  of  said  repealed  law,  unless 
it  be  declared  otherwise  in  the  repealing  statute."  Fenal  Code,  art.  15 
(Pose.  Dig.,  arts.  16,  17)  ;  Montgomery  v.  The  State,  2  Texas,  Ct.  App. 
618. 

There  being  no  law  now  in  force  in  Caldwell  County  to  punish  oflfen- 
ders  against  the  local-option  law,  since  its  annulment  by  the  second 
vote  of  the  county  against  prohibition,  the  judgment  will  be  reversed 
and  this  prosecution  will  be  dismissed.  Meversed  and  dismissed. 


STEVENS  V.  DIMOND. 

Superior  Court  of  Judicature,  New  Hampshire.     1833. 

[Reported  6  X.  H.  330.] 

This  was  a  writ  of  error  brought  to  reverse  a  judgment  of  the  court 
of  common  pleas  in  this  count}'. 

It  appeared  by  the  record,  that  Stevens  brought  an  action  of  debt 
against  Dimond  upon  the  statute  of  June  17,  1811,  entitled  '•  an  act  to 
authorize  towns  to  make  by-laws  to  prevent  horses,  etc.,  from  going  at 
large,"  and  upon  a  by-law  made  by  the  town  of  Hawke,  on  the  9th 
March,  1830,  "that  if  any  horse,  horse  kind,  etc.,  shall  be  found  going 
at  large  from  and  after  the  first  day  of  April  until  the  last  day  of 
October,  in  any  street,  highway,  or  common  in  said  town,  the  owner 
thereof  shall,  for  each  and  every  offence  forfeit  and  pay  the  sum  of 
four  dollars,  with  costs  of  suit,  to  any  person  who  may  sue  for  the 
same,  to  be  recovered  in  an  action  of  debt,  etc.,  unless  such  horse, 
etc.,  shall  be  going  at  large  without  the  knowledge  or  negligence  of  the 
owner  or   owners." 

It  was  alleged  in  the  declaration  that  Dimond,  on  the  11th  May, 
1830,  at  Hawke,  let  one  mare  and  one  colt,  he  being  the  owner  thereof, 
go  at  large  in  a  certain  highway  in  said  Hawke,  witb  his  own  knowl- 
edge and  consent,  contrary  to  the  form  and  effect  of  the  law  aforesaid. 


SECT.  I.]  STEVENS   V.   DIMOND.  21 

The  defendant  pleaded  that  he  did  not  owe  in  manner  and  form  as 
alleged,  and  the  cause  was  tried  in  the  common  pleas,  at  October  term, 
1831,  when  the  plaintiff  proved  the  making  of  the  hj-law,  and  that  the 
mare  and  colt  of  the  defendant  were,  on  the  11  May,  1830,  at  large, 
with  his  consent,  in  a  highway  in  Hawke  ;  but  the  court  directed  the 
jury  that  the  said  by-law  being  in  force  for  a  year  only,  from  the  time 
of  making  thereof,  and  having  expired  by  its  own  limitation,  the 
plaintiff  could  not  sustain  his  action.  The  jury  having  returned  a  ver- 
dict for  the  defendant,  a  bill  of  exceptions  to  the  directions  of  the  court 
to  the  jury  was  filed  and  allowed,  and  this  writ  of  error  brought. 

Richardson,  C.  J.,  delivered  the  opinion  of  the  court. 

The  action,  the  judgment  in  which  is  now  before  us,  was  founded  as 
well  upon  the  statute  which  authorized  towns  to  make  by-laws,  as  upon 
the  by-law,  and  it  was  necessary  to  allege  in  the  declaration,  that  the 
ofience  was  committed  as  well  against  the  form  of  the  statute,  as  against 
the  form  of  the  by-law.  1  Chitty's  PI.  358  ;  3  Pickering,  4G2,  Com- 
monwealth V.  Worcester  ;  5  ditto,  44,  Commonwealth  v.  Gay. 

The  statute,  on  which  that  action  was  founded,  still  remains  in  force; 
and  the  by-law  bus  never  been  repealed  by  the  town. 

But  the  court  below  were  of  opinion  that  the  by-law  expired  with  the 
year  by  its  own  limitation,  and  ceased  to  be  in  force.  And  if  this  be 
correct,  it  is  clear  that  the  verdict  was  right ;  for  after  a  law  ceases  to 
be  in  force  no  penalty  can  be  enforced,  nor  punishmeni  "nflicted  for 
violations  of  the  law  while  it  was  in  force. 

The  question,  then,  is,  did  the  by-law  in  this  case  cease  to  be  in  force 
after  the  year,  so  that  no  action  for  a  penalty  incurred  under  it  can  now 
be  maintained? 

There  is  nothing  in  the  by-law  itself  which,  in  express  terms,  declares 
it  sL"!l  not  be  in  force  after  the  year.  When  the  period  it  was  intended 
to  regulate  expired,  it,  without  doubt,  ceased  to  be  a  rule  to  regulate 
what  was  done  afterwards.  But  did  it  cease  to  be  the  law  of  that 
period  ? 

In  many  cases  statutes  that  are  repealed,  or  that  cease  to  be  in  force 
by  their  own  limitation,  continue  to  be  the  law  of  the  period  when  they 
were  in  force.  It  is,  however,  settled,  that  this  is  not  the  case  with 
laws  inflicting  penalties.  When  these  expire  by  their  own  limitation, 
or  are  repealed,  they  cease  to  be  the  law  in  relation  to  the  past  as  well 
as  the  future,  and  can  no  longer  be  enforced  in  any  case.  No  case  is, 
however,  to  be  found  in  which  it  was  ever  held  before  that  they  thus 
ceased  to  be  law,  unless  they  expired  by  express  limitation  in  them- 
selves, or  were  repealed.  .It  has  never  been  decided  that  they  cease  to 
be  law  merely  because  the  time  they  were  intended  to  regulate  had  ex- 
pired. Many  laws  have  been  passed  which  were  limited  in  their  opera- 
tion to  particular  seasons  of  the  year.  This  was  the  case  with  the 
statutes  which  regulated  the  hunting  of  deer,  and  the  taking  of  fish  in 
rivers  and  ponds.  But  it  is  imagined  that  ni  one  ever  supposed  that 
those  laws  expired  by  their  own  limitations  every  time  the  season  they 


22  REX   V.    BUOWN.  [chap.  I. 

were  intended  to  regulate  expired,  and  revived  again  with  the  return 
of  the  season.  The  same  is  the  ease  with  the  statutes  regulating  the 
observance  of  the  sabbath.  The  statutes  apply  only  to  one  day  in  the 
week.  Bnt  we  imagine  no  person  will  contend  that  they  remain  in  force 
only  during  Sunday. 

So  we  have  a  statute  which  prohibits  the  publication  of  the  revised 
laws  within  the  period  of  ten  years  from  a  certain  time  under  a  penalty. 
It  seems  to  us  that  no  one  would  seriously  suppose  that  a  penalty  in- 
curred under  that  statute  could  not  be  enforced  after  the  expiration  of 
the  ten  years. 

A  very  little  consideration  of  the  subject  will  convince  any  one  that 
a  limitation  of  the  time  to  which  a  statute  is  to  apply,  is  a  very  different 
thing  from  the  limitation  of  the  time  a  statute  is  to  continue  in  force. 

We  are,  therefore,  of  opinion,  that  the  instructions  given  to  the  jury 
by  the  court  below  were  incorrect,  and  that  the  judgment  must  be  re- 
versed. 


SECTION  II. 

Nature  of  Crime. 

REX  V.   STONEHOUSE. 
King's  Bench.     1696. 
[Reported  3  Salk.  188.] 

Indictment  against  Elizabeth  Stonehouse,  for  that  she,  intending  to 
deprive  Henry  Bradshaw  of  several  sums  of  money,  did  falsely  and 
maliciously  accuse  him  of  felony  and  of  robbing  her. 

This  indictment  was  adjudged  ill,  because  it  was  for  a  fact  not 
indictable,  it  not  being  laid  by  way  of  conspiracy,  so  as  to  make  it 
a  public  crime ;  and  it  being  only  a  private  wrong  the  party  hath  his 
remedy  by  action  on  the  case. 


REX   V.    BROWN. 
King's   Bench.     1696. 

[Reported^  Salk.  \S'i.'\ 

The  justices  made  an  order,  that  the  defendant  should  pay  Stephen 
Paine,  a  taylor,  11.  for  work  done ;  which  he  (the  defendant)  refusing 
to  do,  was  indicted. 

But  it  was  quashed,  for  't  is  a  matter  not  indictable. 


SECT.  II.]  REGINA  V.   JONES.  23 


REX  V.   BRADFORD. 

King's  Bench.     1698. 

[Reported  3  Salk.  189.] 

The  defendant  was  indicted  for  not  curing  the  prosecutor  of  an 
ulcerated  throat,  as  he  had  agreed  and  undertaken  to  do. 

Quashed,  for  't  is  no  public  offence,  and  no  more  in  effect  than  an 
action  on  the  case. 


REX  V.   PIGOT. 

King's  Bench.     1701. 

[Reported  12  Mod.  516] 

He  was  convicted  upon  an  indictment  for  misdemeanor  in  attempt- 
ing forcibly  to  carry  away  one  Mrs.  Hescot,  a  woman  of  great  fortune. 

Lord  Holt,  C.  J.  Sure  this  concerns  all  the  people  in  England  that 
would  dispose  of  their  children  well. 

And  he  was  fined  two  hundred  marks,  and  the  lady's  maid,  who  was 
priv3'  to  the  contrivance,  was  fined  twenty  marks,  and  to  go  to  all  the 
courts  with  a  paper  upon  her,  with  her  offence  writ  in  large  characters. 


EEGINA  V.  JONES. 
Queen's  Bench.  1704. 
[Reported  2  Ld.  Raym.  1013.] 

Mr.  Parker  moved  to  quash  an  indictment.  It  is,  that  the  defend- 
ant came  to  J.  D.  and  pretended  to  be  sent  to  him  by  F.  S.  to  receive 
20^.  for  his  use ;  whereas  F.  S.  did  not  send  him.  This  is  no  crime, 
and  he  has  remed}'  by  action. 

Lord  Holt,  C.  J.  It  is  no  crime  unless  he  came  with  false  tokens. 
Shall  we  indict  one  man  for  making  a  fool  of  another?  Let  him  bring 
his  action. 

Powell,  J.,  agreed.  Quash  it  nisi 


24  ATCHESON    V.    EVERITT.  [CHAP.  1. 

ATCHESON   V.    EVERITT. 

King's  Bench.     1776. 

{Reported  1  Cowp.  382.] 

This  was  an  action  of  debt  upon  the  stat.  2  Geo.  2,  c.  24,  sect.  7, 
against  briber}-.     Plea,  Not  guilty.     Verdict  for  the  plaintiff. 

On  behalf  of  the  defendaut,  it  was  moved  last  term,  that  there  might 
be  a  new  trial ;  because  a  Quaker  had  been  received  as  a  witness  on 
his  affirmation  ;  and  it  was  objected,  that  this  being  a  criminal  cause, 
his  evidence  ought  not  to  have  been  received.^ 

Lord  Mansfield,  C.  J.  .  .  .  We  come  then  to  this  question  :  Is  the 
present  a  criminal  cause?  A  Quaker  appears,  and  offers  himself  as 
a  witness  ;  can  he  give  evidence  without  being  sworn  ?  If  it  is  a  crimi- 
nal case,  he  must  be  sworn,  or  he  cannot  give  evidence. 

Now  there  is  no  distinction  better  known  than  the  distinction 
between  civil  and  criminal  law  ;  or  between  criminal  prosecutions  and 
civil  actions. 

Mr.  Justice  Blackstone,  and  all  modern  and  ancient  writers  upon 
the  subject  distinguish  between  them.  Penal  actions  were  never  yet 
put  under  the  head  of  criminal  law,  or  crimes.  The  construction  of  the 
statute  must  be  extended  by  equity  to  make  this  a  criminal  cause.  It 
is  as  much  a  civil  action,  as  an  action  for  mone}'  had  and  received. 
The  legislature,  when  they  excepted  to  the  evidence  of  Quakers  in 
criminal  causes,  must  be  understood  to  mean  causes  technically  crimi- 
nal ;  and  a  different  construction  would  not  only  be  injurious  to 
Quakers,  but  prejudicial  to  the  rest  of  the  King's  subjects  who  may  want 
their  testimony.  The  case  mentioned  by  Mr.  Rooke  of  Sir  Watkyn 
Williams  Wynne  v.  Middleton,  Vide  1  Wils.  125.  2  Str.  1227,  is'  a 
very  full  authorit}',  and  alone  sufficient  to  warrant  the  distinction 
between  civil  and  criminal  proceedings.  In  that  case  the  question  was. 
Whether  the  stat.  7  «fe  8  Wm.  3,  c.  7,  was  penal  or  remedial?  The 
court  held  it  was  not  a  penal  statute.  But  "  supposing  it  was  to  be 
considered  as  a  penal  statute,  yet  it  was  also  a  remedial  law  ;  and 
therefore  the  objection  taken  was  cured  by  stat.  16  k  17  Car.  2,  c.  8." 
Now  the  words  of  exception  in  that  statute,  and  also  in  stat.  32  Hen. 
8,  c.  30,  and  in  stat.  18  Eliz.  c.  14,  are  "penal  actions  and  criminal 
proceedings."  But  Lord  Chief  Justice  Willes,  in  delivering  the  solemn 
judgment  of  the  court,  says,  there  is  another  act  which  would  decide  of 
itself,  if  considered  in  the  light  of  a  new  law,  or  as  an  interpretation  of 
what  was  meant  b}'  penal  actions  in  the  stat.  16  &  17  Car  2,  c.  8. 
This  is  the  statute  of  jeofails  4  Geo.  2,  c.  26,  for  turning  all  law  pro- 
ceedings into  English,  and  it  has  this  remarkable  conclusion,  "that 
every  statute  of  jeofails  shall  extend  to  all  forms  and  proceedings  in 

1  Arguments  of  counsel  and  parts  of  the  opiniou  of  the  court  have  been  omitted 
—  Ed. 


SECT.  II.]  BANCROFT    V.    MITCHELL. 


25 


English  (except  in  criminal  cases)  ;  and  that  this  clause  shall  be  con- 
strued in  the  most  beneficial  manner."     This  is  very  decisive. 

No  authority  whatever  has  been  mentioned  on  the  other  side,  nor  any 
case  cited  where  it  lias  been  held  that  a  penal  action  is  a  criminal  case  ; 
and  perhaps  the  point  was  never  before  doubted.  The  single  autliority 
mentioned  against  receiving  the  evidence  of  the  Quaker  in  this  case  is 
an  appeal  of  murder,  2  Str.  856.  But  that  is  only  a  different  mode  of 
prosecuting  an  offender  to  death.  Instead  of  proceeding  by  indictment 
in  the  usual  way,  it  allows  the  relation  to  carry  on  the  prosecution  for 
the  purpose  of  attaining  the  same  end,  which  the  King's  prosecutio? 
would  have  had  if  the  offender  had  been  convicted,  namely,  execution  . 
and  therefore,  the  writers  on  the  law  of  England  class  an  appeal  of 
murder  in  the  books  under  the  head  of  criminal  cases.  .  .  . 

In  the  case  of  Rex  v.  Turner,  2  Str.  1219,  on  a  motion  to  quash  an 
appointment  of  overseers,  the  court  said,  though  the  prosecution  is 
in  the  King's  name,  the  end  of  it  is  a  civil  remedy,  and  very  properly 
allowed  the  Quaker's  affirmation  to  be  read. 

It  is  extraordinary,  that  upon  all  the  cases  of  attachment  not  one 
was  argued  upon  the  groiuid  of  its  being  a  criminal  case;  and  to  be 
sure  the  exception  might  as  well  hold  on  an  affirmation  taken  to  hold 
to  bail ;  because  it  deprives  a  man  of  his  liberty.  The  ver}'  last 
attachment  for  non-performance  of  an  award  was  obtained  in  this 
court  upon  a  Quaker's  affirmation,  and  not  a  word  said  b}'  way  of 
objection  to  it.     That  was  the  case  of  Taylor  v.   Scott. 

We  are  not  under  the  least  embarrassment  in  the  present  case  :  for 
there  is  not  a  single  authority  to  prove,  that  upon  a  penal  action 
a  Quaker's  evidence  may  not  be  received  upon  his  affirmation.  There- 
fore, I  am  of  opinion  that  Mr.  Justice  Nares  did  perfectly  right  in 
admitting  this  Quaker  to  be  a  witness  upon  his  affirmation  ;  and  con- 
sequently tliat  the  rule  for  a  new  trial  should  be  discharged. 

The  three  other  Judges  concurred. 

Rule  discharge^ 


BANCROFT  v.    MITCHELL. 
Queen's  Bench.     1867. 
[Reported  L.  R.  2  Q.  B.  549.] 

This  was  an  action  for  false  imprisonment.  The  plaintiff  was  arrested 
while  he  was  protected  from  arrest  on  civil  suits  b}-  an  order  of  the 
Court  of  Bankruptcy.  The  defence  was  that  the  plaintiff  was  arrested 
on  a  warrant  for  failure  to  obey  the  order  of  a  magistrate  for  paying 
3s.  per  week  for  the  support  of  his  mother.  At  the  trial  the  jury  found 
one  farthing  damages. 

The  learned  judge,  being  of  opinion  that  the  plaintiff  was  not  protected 
from  arrest,  directed  a  nonsuit,  with  leave  to  the  plaintiff  to  move  to 
enter  a  verdict  for  1 5^.  and  a  farthing. 


26  BANCROFT    V.   MITCHELL,  [CHAP.  L 

A  rule  was  accordingly  obtained.^ 

Blackburn,  J.  The  question  which  arises  under  s.  113  of  12  &  13 
Vict.  c.  106  is,  whether  or  not  the  plaintiff  was  protected  by  the  order 
of  the  county  court  from  the  process  under  which  he  was  arrested. 
That  depends  upon  the  nature  of  the  process  under  which  he  was 
arrested  and  the  nature  of  the  process  from  which  the  bankrupt  is  pro- 
tected. Section  113  relates  back  to  s.  112,  which  provides  that,  if  a 
bankrupt  be  not  in  prison,  he  shall  be  free  from  arrest  in  coming  to 
surrender,  and  after  such  surrender  for  such  further  time  as  shall  be 
allowed  him  by  the  commissioner ;  and  if  he  be  in  prison  he  may  be 
brought  up  to  be  examined  or  to  surrender,  and  after  he  has  been 
adjudged  a  bankrupt  and  has  surrendered  and  obtained  his  protection 
from  arrest,  if  he  be  in  prison  or  arrested  for  debt,  the  Court  may  order 
his  immediate  release.  Now,  the  words  of  s.  112  are  nearly  similar  to 
those  contained  in  the  bankruptcy  acts  passed  before  12  &  13  Vict.  c. 
106,  and  the  point  was  considered  in  Darby  v.  Baugham,  5  T.  R.  209, 
and  the  decision  of  the  Court  was,  that  the  object  of  the  enactment 
then  in  force  was  to  give  protection  to  the  same  extent,  and  in  the 
same  way,  to  a  bankrupt,  as  a  witness  who  was  going  to  court  to  give 
evidence  would  receive  protection,  and  therefore  a  bankrupt's  creditors 
could  not  arrest  him  as  he  was  going  to  surrender.  The  protection 
which  the  bankrupt  receives  being  analogous  to  that  accorded  to  a  wit- 
ness, the  process  against  which  he  is  protected  is  in  the  nature  of  civil 
process,  but  if  on  the  other  hand  the  process  is  in  the  nature  of  crimi- 
nal process  he  is  not  protected. 

The  question  remains,  what  is  the  nature  of  the  process  under  which 
the  plaintiff  was  arrested?  What  is  it  that  the  plaintiff  has  done  or 
omitted  to  do?  He  is  the  son  of  a  woman  who  is  chargeable  to  the 
parish,  and  he  is  of  sufficient  ability  to  support  her.  There  was  a 
moral  duty  on  him,  but  at  common  law  no  legal  duty,  to  support  her. 
By  statute  43  Eliz.  c.  2,  s.  7,  it  is  enacted,  that  the  children  of  every 
poor  person  not  being  able  to  work,  being  of  sufficient  ability,  shall,  at 
their  own  charge,  relieve  and  maintain  every  such  poor  person  in  that 
manner,  and  according  to  that  rate,  as  by  the  justices  shall  be  assessed, 
upon  pain  that  every  one  of  them  shall  forfeit  20s.  for  every  month 
which  they  shall  fail  therein.  It  was  as  a  punishment  for  the  disobedi- 
ence of  an  order  made  under  this  section  that  the  plaintiff  was  arrested. 
Mr.  Williams'  argument  is  that  the  plaintiff  was  arrested  for  not  paying 
a  sum  of  money  which  he  was  ordered  to  pay  to  the  parish,  and  there- 
fore it  was  only  for  the  non-payment  of  a  debt  that  he  was  arrested. 
But  the  payment  of  the  sum  is  only  one  mode  by  which  the  plaintiff 
complies  with  the  statute.  The  statute  makes  what  was  a  duty  of  im- 
perfect obligation  a  positive  duty.  I  agree  that  the  fact  that  an  indict- 
ment will  lie  for  a  disobedience  of  an  order  of  sessions  is  no  reason 

1  Tliis  short  statement  of  the  facts  is  substituted  for  that  of  the  Reporter,  Argu- 
ments  of  counsel  are  omitted.  —  Ed, 


SECT.  II.]  STATE    V.    BALDWIN.  27 

that  the  disobedience  should  be  an  offence  of  a  criminal  nature.  The 
offence  here  is  that  the  plaintiff  being  of  ability  would  not  support  his 
impotent  relative  —  that  is  a  duty  the  neglect  of  which,  though  only 
morally  wrong  before  the  statute,  is  made  a  crime  by  the  statute.  It 
seems  to  me,  therefore,  that  the  commitment  is  not  in  the  nature  of 
civil,  but  of  criminal  process  to  punish  the  plaintiff  for  not  performing 
the  duty  imposed  on  him  by  statute.  It  is  quite  true  that  on  payment 
of  the  money  he  would  get  off  the  imprisonment,  but  still  it  is  in  the 
nature  of  criminal  process,  and  consequently  the  plaintiff  was  not 
entitled  to  his  discharge.  He  must,  therefore,  fail  to  recover  the  15^, 
penalty  or  the  farthing  damages  which  the  jury  have  given  him,  because 
he  was  properly  imprisoned  as  a  misdemeanant,  and  not  as  a  debtor. 
There  was  evidence  that  it  was  necessary  for  his  health,  and  for  the 
sake  of  cleanliness,  that  his  hair  and  whiskers  should  be  cut,  and  it 
was  a  question  for  the  jury  whether  there  was  any  excess  in  this 
respect,  and  I  think  we  must  take  it  there  was  none. 

Mellor,  J.  I  am  of  the  same  opinion.  I  was  impressed  by  the 
aro-ument  of  Mr.  Williams  that  whether  the  plaintiff  could  be  indicted 
or  not  for  a  disobedience  of  the  order,  was  not  the  test  whether  the 
offence  was  criminal  or  not.  But  I  have  come  to  the  conclusion  that 
the  dutv  of  a  son  to  support  his  mother,  having  been  originally  moral 
only,  was  made  a  positive  duty- by  the  statute,  which  requires  that,  in 
the  event  of  the  son  neglecting  that  duty,  he  shall  pay  such  sum  as  the 
justices  shall  order,  and  then  the  ultimate  enforcement  of  that  duty  is 
carried  out  by  fixing  a  penalty,  and  in  the  event  of  the  nonpayment  of 
that  penalty  a  punishment  of  not  more  than  three  months  imprisonment 
is  imposed.  That  is  in  the  nature  of  a  punishment  for  a  criminal 
offence.  It  is  not  at  all  analogous  to  the  case  of  an  indictment  for  dis- 
obeying an  order  of  sessions  for  the  payment  of  poor-rates,  nor  to  an 
attachment  for  nonpayment  of  money  pursuant  to  the  order  of  the 
Court  of  Chancer}',  where  the  process  is  in  the  nature  of  an  execution 
for  a  debt.  The  circumstances  of  this  case  show  that  the  imprisonment 
is  a  punishment  for  an  offence,  and  not  for  enforcing  a  mere  obligation 
to  pay  money.  The  plaintiff,  therefore,  is  not  entitled  to  the  penalty 
for  which  he  sues,  nor  to  the  damages  the  jury  have  given  him  ;  the  rule 
must  be  discharged.  Hide  discharged. 


STATE   V.    BALDWIN. 
Supreme  Court  of  North  Carolina.     1835. 

[Reported  1  Dev.  .j-  Bat.  195] 

Gaston,  J.^  ...  The  act  here  charged  is  not  made  up  of  a  number 
of  acts  frequently  repeated,  and  which  cannot  be  distinctly  and  spec- 
ially set  forth  without  inconvenient  prolixit}'.  It  is  an  act  single  and 
distinct,  and  committed  on  a  particular  occasion.     It  is  charged  that 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


28  STATE    V.   BALDWIN.  [CHAP,  I. 

the  defendants  assembled  at  a  public  place,  and  profanely  and  with  a 
loud  voice  cursed,  swore,  and  quarrelled,  in  the  hearing  of  divers  per- 
sons, and  it  is  alleged,  that  by  means  thereof  a  certain  singing  school 
then  and  there  kept  and  held  was  broken  up  and  disturbed.  This  pro- 
fane and  loud  cursing  and  quarrelling  on  that  particular  occasion, 
might  liave  been  an  annoyance  to  those  who  heard  and  witnessed  it; 
but  it  could  not  have  been  an  annoyance  to  the  citizens  in  general, 
unless  there  were  some  othc)'  facts  in  the  case.  If  there  were  such 
other  facts,  then  these  ought  to  have  been  set  forth;  for  an  indictment 
must  specify  all  the  facts  which  constitute  the  offence.  It  is  possible 
that  a  frequent  and  habitual  repetition  of  acts  which  singly  are  but 
private  annoyances  may  constitute  a  public  or  common  nuisance.  But 
if  so,  this  frequent  and  habitual  repetition  should  be  appropriately 
charged.  No  injurious  consequences  of  an  abiding  kind,  and  therefore 
affecting  not  simph'  those  present  at  the  commission  of  the  act,  but 
affecting  the  citizens  successively,  and  as  they  come  within  the  reach 
of  these  consequences,  are  charged,  or  can  be  presumed  to  have  followed 
from  the  act.  "The  singing  school"  is  indeed  said  to  have  been 
broken  up  and  disturbed.  Of  whom  that  school  was  composed  does 
not  even  appear,  but  whether  it  consisted  of  the  defendants  or  of  others 
its  interruption  cannot  be  leaally  pronounced  an  inconvenience  to  tlie 
whole  community.  The  loss  of  instruction  in  the  accomplishment,  to 
those  who  would  fain  acquire  it,  does  not  very  gravely  influence  the 
good  order  or  enjoyment  or  convenience  of  the  citizens  in  general,  so 
as  to  call  for  redress  on  the  complaint  of  the  state. 

If  we  sustain  this  as  an  indictment  for  a  common  nuisance,  we  shall 
be  obliged  to  hold,  that  whenever  two  or  more  persons  talk  loud  or 
curse  or  quarrel  in  the  presence  of  others,  it  may  be  charged  that  this 
was  done  to  the  common  nuisance,  and  if  so  found,  will  warrant 
punishment  as  for  a  crime.  This  would  be  either  to  extend  the  doctrine 
of  common  nuisances  far  beyond  the  limits  within  which  they  have 
hitherto  been  confined,  or  to  allow  of  a  vagueness  and  generality  in 
criminal  charges,  inconsistent  with  that  precision  and  certainty  on  the 
records  so  essential  as  restraints  on  capricious  power,  and  so  salutary 
as  the  safeguards  of  innocent  men. 

Independently  of  the  averment  "  to  the  common  nuisance,"  the 
indictment  contains  no  criminal  charge.  No  conspiracy  is  alleged,  no 
special  intent  or  purpose  is  averred,  which  would  impress  an  extraor- 
dinary character  on  the  act  done.  The  persons  disturbed  are  not  rep- 
resented as  having  been  engaged  in  the  performance  of  any  public 
duty  —  as  engaged  in  religious  worship,  attending  at  an  election,  or  at 
a  court.  Upon  a  demurrer  to  the  indictment,  we  should  be  unable  to 
render  a  judgment  for  the  state.  It  is  our  opinion,  therefore,  that 
there  is  no  error  in  the  proceedings  below,  and  that  the  judgment 
appealed  from  must  be  affirmed. 

Per  Curiam.  Judgment  affirmed 


SECT.  II.]  STATE    V.    STEARNS.  29 

STATE  V.  STEARNS. 

Superior  Court  of  Judicature,  New  Hampshire.     1855. 

[Reported  31  N.  H.  106.] 

This  is  a  prosecution  against  tlie  respondent,  for  a  breach  of  an 
ordinance  of  the  city  of  Portsmouth,  regulating  bowling  alleys,  com- 
menced by  a  complaint  before  a  justice  of  the  peace.^ 

A  warrant  was  issued  upon  this  complaint,  returnable  before  the 
poUce  court  of  the  city  of  Portsmouth,  and  the  respondent  being  there 
found  guilty,  took  an  appeal  to  the  court  of  common  pleas. 

In  the  court  of  common  pleas,  the  respondent  was  ordered  to  pay 
the  costs  of  the  copies,  and  entry  in  that  court,  to  which  order  he  ex- 
cepted. The  respondent  demurred  to  the  complaint  and  declaration  in 
this  court,  and  the  court  sustained  the  demurrer  and  dismissed  the 
complaint.  The  respondent  then  moved  for  costs  of  this  court,  and 
also  of  the  police  court,  to  be  taxed  against  the  city  of  Portsmouth,  or 
the  complainant  in  said  prosecution,  which  motion  was  refused  by  the 
court,  and  the  respondent  excepted. 

The  penalty  to  be  recovered  for  the  breach  of  this  ordinance  is,  by 
law,  to  be  appropriated  for  such  uses  as  shall  be  directed  by  the  city 
council  of  said  city. 

The  questions  arising  upon  these  exceptions  were  transferred  to  this 
court  for  decision. 

Bell,  J.  .  .  .  It  is  contended  for  the  respondent  that  this  proceeding 
is  not  in  its  nature  criminal,  but  is  essentially  a  civil  action,  falling  within 
the  statute  rule  that  "  costs  shall  follow  the  event  of  every  action  or 
petition,  unless  otherwise  directed  by  law,  or  by  the  court."  Rev.  Stat, 
ch.  191,  §  1.  And  first  it  is  said  that  the  form  of  proceeding  by  com- 
plaint is  not  conclusive  that  the  case  is  of  a  criminal  nature,  and  to  this 
position  we  are  inclined  to  yield  our  assent ;  but  we  think  it  very  clear 
that  a  statute  provision  prescribing  such  proceedings  in  a  given  case,  as 
are  usually  made  appropriate  by  the  law  to  criminal  cases,  is  strong 
evidence  that  the  cases  were  regarded  by  the  legislature  as  of  a  criminal 
nature. 

We  think,  too,  it  may,  in  general,  be  justly  inferred,  where  the  legis- 
lature prescrilie  a  course  of  proceedings  adopted  by  the  common  law 
for  proceedings  of  a  nature  entkely  different,  that  the  design  of  the 
legislature  was  to  prescribe  all  the  known  and  usual  incidents  of  the 
prescribed  process,  and  to  give  to  parties  the  advantages  of  proceed- 
ings in  that  form.  As,  if  the  legislature  grant  a  remedy  in  assumpsit, 
where,  at  common  law,  trespass  would  be  appropriate,  they  design  that 
the  action  of  assumpsit  shall  retain  its  proper  character  and  rules  in 
that  case. 

1  The  form  of  the  complaint  and  part  of  the  opinion  of  the  court  are  omitted.—  Ed. 


30  STATE  V.   STEAENS.  [CHAP  I. 

Neither  does  the  appropriation  of  the  fine  or  penalty  imposed  in  a 
given  case,  whether  it  be  to  the  state,  count}-,  or  town,  or  to  a  corpo- 
ration, or  individual,  furnish  any  decisive  test  that  a  proceeding  is 
criminal  or  civil.  When  a  statute  forbids  fraudulent  mortgages  and 
the  concealment  of  attachable  property,  it  by  no  means  follows, 
because  half  the  fine  is  given  to  the  complainant,  that  the  prosecution 
is  civil,  nor  would  it  do  so  if  the  whole  fine  were  so  appropriated. 

The  question  whether  a  legal  proceeding  is  to  be  deemed  civil  or 
criminal,  or  as  partaking  of  the  nature  of  civil  and  criminal  proceed- 
ings, is  to  be  determined  by  the  consideration  whether  the  law  is  de- 
signed to  suppress  and  punish  a  public  wrong,  an  injury  affecting  the 
peace  and  welfare  of  the  community  and  the  general  security,  or 
whether  it  is  designed  mainly  to  afford  a  remedy  to  an  individual  for 
an  injury  done  to  his  person  or  property.  Upon  this  question  the  ap- 
propriation of  the  fine  or  penalty  has  a  bearing,  since,  if  it  is  applied 
to  the  public  use,  no  idea  can  be  entertained  that  the  proceeding  is 
designed  as  a  remedy  for  a  private  loss  or  injury,  though  it  may  some- 
times have  a  different  tendency,  where  the  amount  is  appropriated  to 
the  use  of  a  suffering  party. 

And,  in  a  similar  way,  the  adoption  of  a  course  of  proceeding  usual 
in  criminal  cases  alone  may  bear  upon  the  main  question  before  referred 
to,  because,  ordinarily,  proceedings  adapted  to  the  punishment  of 
offences  are,  to  a  great  degree,  unsuitable  for  the  redress  of  private  in- 
juries. The  party  injured  has  no  exclusive  privilege  to  institute 
criminal  proceedings ;  they  are  equally  open  to  others ;  he  has  no  con- 
trol over  such  prosecutions,  which  are  generally  managed  by  the  public 
auUiorities;  the  fines  and  penalties  are,  for  the  most  part,  payable 
to  others,  and  liable  to  be  remitted  by  the  proper  officers  without 
reference  to  his  wishes  or  his  interest. 

This  present  case  is  one  of  a  prosecution  for  an  offence  made  penal 
by  a  city  ordinance,  because  of  its  supposed  evil  consequences  to  so- 
ciety. It  has  no  relation  to  any  individual  wrong,  and  the  remedy 
prescribed  is  such  as  indicates  a  criminal  proceeding.  It  is  prosecuted 
by  a  public  officer,  as  part  of  his  official  duty,  but  might  be  prosecuted 
by  any  other  person  as  well.  The  fine  is  payable  to  the  city,  but  not 
to  compensate  any  wrong  to  the  corporation.  The  burden  of  adminis- 
tering justice  is  here  imposed  upon  counties,  cities,  and  towns,  and 
fineslind  forfeitures  are  payable  to  them,  as  the  representatives  of  the 
public,  to  aid  in  defraying  this  part  of  the  expense  of  civil  government. 
The  case  then  seems  to  us  to  lack  all  the  indicia  of  a  civil  action,  and 
to  be,  in  fact,  as  it  appears,  a  criminal  prosecution. 

The  court  were  in  error  in  requiring  the  costs  of  the.  copies  and  entry 
to  be  paid,  but  the  costs  were  properly  disallowed. 


SECT.  II.]  STATE    V.    KEENAN.  31 

STATE   V.  KEENAN. 
Supreme  Court  of  Errors  of  Connecticut.     1889. 

[Reported  57  Conn.  286.] 

Carpenter,  J.  This  is  a  criminal  prosecution  for  the  violation  of  an 
ordinance  of  the  city  of  New  Haven.  The  City  Court  convicted  the 
defendant,  and  he  appealed  to  the  Court  of  Common  Pleas,  criminal 
side.  In  the  appellate  court  the  defendant's  counsel  moved  to  erase 
the  case  from  the  docket  on  the  ground  that  tlie  alleged  offence  was  not 
a  crime ;  and  on  that  motion  the  case  was  reserved  for  the  advice  of 
this  court. 

The  ordinance  is  as  follows  :  —  "no  vehicle,  or  the  animals  attached 
thereto,  shall  stand  waiting  for  employment  within  ten  feet  of  any 
cross-walk."  Another  section  prescribes  a  penalty  of  not  less  Dian  one 
nor  more  than  ten  dollars  for  every  violation  of  the  ordinance.  The 
only  question  is  whether  such  violation  is  a  crime. 

If  the  legislature  itself  had  prohibited  the  act  and  prescribed  the 
penalty  in  precisely  the  same  terms,  there  can  be  little  doubt  that 
the  act  would  be  a  misdemeanor  and  might  be  prosecuted  criminally. 
It  cannot  be  disputed  that  the  legislature  in  fact  granted  the  power  to 
enact  this  b3'-law,  and  the  power  has  been  exercised.  Logically  it 
would  seem  to  follow  that  the  by-law  should  be  of  the  same  character 
and  have  the  same  force  within  local  limits  as  if  enacted  by  the 
legislature. 

The  test  whether  a  proceeding  is  civil  or  criminal,  is  to  determine 
whether  its  purpose  is  to  redress  a  private  or  a  public  wrong.  Is  the 
law  made  to  prevent  a  private  injury  or  a  nuisance? 

In  Hinman  v.  Taylor,  2  Conn.  357,  which  was  a  prosecution  under 
the  bastardy  act,  it  was  contended  that  because  the  proceeding  was  in 
form  criminal  it  must  be  regarded  as  a  criminal  prosecution  ;  but  the 
court  took  a  different  view.  Swift,  C.  J.,  held  that  the  proposition 
that  the  form  of  the  process  decided  the  character  of  the  action,  was 
repugnant  to  reason  and  precedent.  "  Suppose,"  he  says,  "  the  legis- 
lature should  authorize  a  forthwith  process  on  a  note  of  hand  ;  no  one 
will  seriously  pretend  that  this  would  convert  an  action  of  assumpsit 
into  a  criminal  suit.  To  constitute  a  criminal  suit  some  punishment 
must  be  inflicted  in  behalf  of  the  state."  He  evidently  regarded  the 
object  and  nature  of  the  suit  as  determining  the  character  of  the  pro- 
ceeding. Judge  HosMER,  in  the  same  case,  is  still  more  explicit. 
He  says  :  "  The  criterion  to  ascertain  a  crime  is  not  the  mere  form  of 
process,  but  the  nature  of  the  act  or  omission.  If  it  be  a  violation  of  a 
public  law,  it  is  a  crime  or  misdemeanor."  We  find  the  same  doctrine 
clearly  stated  ia  State  v.  Stearns,  31  N.  Hamp.  106. 


32  STATE    V.    KEENAN.  [CHAP.  I. 

Let  US  apply  that  test.  A  criminal  form  of  proceeding  is  clearly 
authorized,  and  the  act  is  an  offence  against  the  public  and  not  an  injury 
to  an  individual.  The  penalty  is  not  in  the  nature  of  compensation  to 
the  city  for  an  injury  sustained,  but  is  designed  as  a  punishment  for  a 
wrong  done  to  the  community  —  a  wrong  prohibited,  because  it  may 
result  in  harm  or  inconvenience  to  individuals,  wlio  may  or  may  not 
be  inhabitants  of  the  city.  Thus  tested  tlie  nature  of  the  act  as  well 
as  the  form  of  process  is  clearly  criminal. 

Two  reasons  are  urged  why  a  criminal  prosecution  cannot  be  main- 
tained and  that  the  motion  to  dismiss  should  prevail.  First,  that  the 
charter  expressly  provides  that  an  action  may  be  brought  for  the  penalty 
in  the  name  of  the  city  treasurer,  and  tliat  consequently  that  remedy 
alone  must  be  pursued.  But  this  argument  overlooks  the  object  of  the 
bv-law,  which  is  to  prevent  a  nuisance,  a  matter  in  its  nature  criminal. 
It  is  no  uncommon  thing  for  a  statute  to  authorize  an  action  to  recover 
a  penalty  incurred  by  doing  a  forbidden  act,  even  where  a  public  prose- 
cution can  be  sustained,  as  is  the  case  in  all  qui  tarn  actions.  Here 
not  only  a  civil  suit  but  a  public  prosecution  is  authorized  in  the  charter. 
But  to  avoid  injustice  it  is  expressly  provided  that  ''no  person  shall 
be  prosecuted  both  civilly  and  criminally  for  tlie  same  breach  of  a 
by-law." 

In  the  second  place,  it  is  contended  that  the  right  of  imprisonment  to 
•»erce  the  payment  of  a  penalty  is  not  expressly  given  ;  and  if  not 
Ipressly  granted,  it  cannot  exist.  This  argument  seems  to  beg  the 
question  by  assuming  that  the  sole  object  of  the  suit  is  to  collect  a 
penalty  for  the  benefit  of  the  city  of  New  Haven  ;  whereas  the  real 
purpose  of  the  by-law,  and  consequently  of  the  action,  is  to  suppress  a 
public  nuisance.  For  that  purpose  there  can  be  no  serious  objection 
to  putting  in  operation  the  power  and  legal  machinery  of  the  state. 

We  advise  that  the  motion  to  dismiss  be  denied. 

In  this  opinion  the  other  judges  concurred. 


SECT.  I.]  WISPINGTON    V.   EDLINGTON.  33 

CHAPTER  II. 
THE  OFFENCE. 


SECTION   I. 

I^elonies. 

KENNEL   V.   CHURCH. 

Cornish  Eyre.     1201. 
[1  Seidell  Soc.  7.] 

OsBERT  Church,  accused  of  the  death  of  Roland,  son  of  Reginald  of 
Kennel,  on  the  appeal  of  the  said  Reginald,  was  detained  in  gaol  and 
defends  word  b}-  word.  And  Reginald  offers  proof  by  the  body  of  a 
certain  freeman,  Arkald,  who  has  his  daughter  to  wife,  who  is  to  prove 
in  his  stead  since  he  has  passed  the  age  of  sixty.  Osbert  Church 
defends  all  of  it.  The  knights  of  the  hundred  of  Penwith  sa}'  that  they 
suspect  him  of  the  said  death.  The  knights  of  Kerrier  say  the  same. 
The  knights  of  Penwith  say  the  same.  The  knights  of  P3'der  saj-  the 
same.     Judgment :  let  him  purge  himself  by  water. 

And  Reginald  is  in  mere}'  for  he  does  not  allege  sight  and  hearing, 
and  because  he  has  withdrawn  himself,  and  put  another  in  his  place, 
who  neither  saw  nor  heard  and  yet  offered  to  prove  it,  and  so  let  both 
Reginald  and  Arkald  be  in  mercy. 

Osbert  is  purged  by  the  water.^ 


WISPINGTON   V.  EDLINGTON. 

Lincolnshire  Eyre.     1202. 

[1  Selden  Soc.  10.] 

AsTiN  of  Wispington  appeals  Simon  of  Edlington,  for  that  he 
wickedly  and  in  the  king's  peace  assaulted  him  in  his  meadows  and 
put  out  his  eye  so  that  he  is  maimed  of  that  eye  ;  and  this  he  offers  to 
prove,  &c.  Simon  comes  and  defends  all  of  it  word  by  word.  And  the 
coronors  and  the  county  testify  that  hitherto  the  appeal  has  been  duly 
sued,  at  first  by  [Astin's]  wife,  and  then  by  [Astin]  himself. 

1  For  cases  on  the  modern  law  of  Homicide  see  Chap.  XIII.  — Ed. 


34  REX  V.    HUGH.  [chap.  II. 

Judgment:  let  law  be  made,  and  let  it  be  in  the  election  of  the  ap- 
pellee whether  he  or  Astin  shall  carry  the  iron.  He  has  chosen  that 
Astin  shall  carry  it.  Astin  has  waged  the  law.  Simon's  pledges  Wil- 
liam of  Laud  and  his  frankpledge  and  Ralph  of  Stures.  Astin's  pledge, 
Roger  of  Thorpe,  Osgot  of  Wispington,  and  William,  Joel's  brother. 

Afterwards  came  [the  appellor  and  appellee]  and  both  put  themselves 
in  mercy. 


JORDAN   DE   HORMED   v.  WALTER   HACON. 
Hertford  Eyre.     1198. 
[1  RotuU  Curiae  Regis,  160.] 

Jordan  of  Hormed  appeals  Walter  Hacon  for  that  in  the  peace  of  the 
king  and  wickedly  in  felon}'  he  assaulted  him  in  his  house  at  Strange  near 
Ikenton,  and  wounded  him  in  the  head  and  in  the  hand  ;  and  he  shows 
the  wounds  and  offers  to  prove  it  by  his  body  as  the  court  shall 
consider. 

Walter  defends  all,  word  for  word,  against  him  as  against  a  champion 
hired  and  paid,  who  twice  had  started  on  this  course  and  as  often  retired 
without  completing  it. 

Jordan  denies  that  he  is  a  champion,  and  pursues  his  suit  against  him. 

And  a  jury  of  knights  testify  that  on  another  occasion  he  had  appealed 
him  of  the  robber}'  of  a  sword  and  cape  of  which  he  now  made  no 
mention. 

They  are  to  have  a  day  at  Dunstable.^ 


REX  V.  HUGH 

Cornish  Eyre.     1302. 

[Year  Book  30  cj-  31  Ed.  I,  529.] 

H.  was  presented  by  the  twelve  of  Y. ,  for  tliat  he  seized  a  certain 
girl,  and  carried  her  to  his  manor  in  a  certain  vill,  and  carnally  knew 
her  against  her  will. 

H,  was  brought  to  the  bar  by  Brian  and  Nicholas  de  N. 

The  Justiciar.  Brian,  we  are  given  to  understand  that  you  would 
have  induced  the  prisoner  not  to  put  himself  upon  the  jury  which  ac- 
cused him,  and  you  have  done  ill,  but  because  he  is  your  relative,  we 

1  For  cases  on  the  modern  law  of  Assault  see  Chap.  XIII.,  Sect.  II. —  En 


SECT.  I.J  REX   V.    HUGH.  35 

are  willing  that  you  should  stand  by  him,  but  not  that  you  should  act 
as  his  counsel. 

Brian.  My  lord,  he  is  my  relative,  but  I  wish  to  disprove  this,  «&c., 
and  I  desire  that  it  should  be  well  with  him  ;  but  he  will  be  well  ad- 
vised b}'  me  to  refuse  his  common  law.  And  lest  I  should  be  at  all 
suspected  of  strife,  I  will  withdraw. 

The  Justiciar.  Hugli,  the  presentment  is  made  to  us  that  you 
carried  off,  &c.,  as  is  set  forth;  how  will  you  acquit  yourself? 

Hugh.  My  lord,  I  pray  that  I  may  have  counsel,  lest  I  be  undone 
in  the  King's  court  for  lack  of  counsel. 

The  Justiciar.  You  must  know  that  the  king  is  a  party  in  this  case, 
and  prosecutes  ex  officio;  therefore  the  law  in  this  case  does  not  suffer 
you  to  have  counsel  against  the  king,  who  prosecutes  ex  officio;  but  if 
the  woman  should  proceed  against  you,  you  might  have  counsel  against 
her,  but  not  against  the  king.  And  therefore  we  order  on  the  king's 
behalf  that  all  pleaders  of  your  counsel  withdraw.  (These  were  removed.) 
Hugh,  answer.  You  see  the  thing  charged  against  you  is  a  very  possi- 
ble thing,  and  a  thing  of  your  own  doing  ;  so  you  can  well  enough,  with- 
out any  counsel,  answer  whether  you  did  it  or  not.  Moreover,  the  law 
ought  to  be  general,  and  applicable  to  all  persons ;  and  the  law  is  that 
the  king  is  a  party  ex  officio.,  against  whom  one  shall  not  have  counsel ; 
and  if,  in  contradiction  to  law,  we  should  allow  you  counsel,  and 
the  Jury  should  give  a  verdict  in  your  favor  (as,  please  God,  they  will 
do),  people  would  say  that  you  were  acquitted  by  reason  of  the  favor 
of  the  Justiciars  ;  consequently  we  do  not  dare  grant  3-our  request, 
nor  ought  you  to  make  it.     Therefore,  answer. 

Hugh.  My  lord,  I  am  a  clerk,  and  ought  not  to  be  required  to 
answer  except  unto  my  ordinary. 

The  Justiciar.     Are  you  a  clerk? 

Hugh.     Yes,  my  lord,  for  I  have  been  rector  of  the  church  of  N. 

Ordinary.     We  demand  him  as  a  clerk. 

Hugh.     He  speaks  for  me. 

The  Justiciar.  We  say  that  you  have  forfeited  your  benefit  of 
clergy,  inasmuch  as  you  are  a  bigamist,  having  married  a  widow  ;  tell 
us  whether  she  was  a  virgin  when  you  married  her ;  and  it  is  as  well  to 
know  the  truth  at  once  as  to  delay,  for  we  can  find  out  in  a  moment 
from  a  juiy. 

Hugh.     My  lord,  she  was  a  virgin  when  I  married  her. 

The  Justiciar.  This  should  be  known  at  once.  And  he  asked  the 
twelve  whether  Hugh,  &c.,  who  said  on  their  oath  that  she  was  a 
widow  when  Lord  Hugh  married  her.  But  note  that  they  were  not 
sworn  anew,  because  they  had  been  sworn  before. 

The  Justiciar.  Therefore  this  court  adjudges  that  you  answer  as 
a  layman,  and  agree  to  those  good  men  of  the  twelve  ;  for  we  know 
that  they  will  not  lie  to  us. 

Hugh.     My  lord,  I  am  accused  by  them  ;  therefore  I  shall  not  agree 


36  REX    V.    HUGH.  [chap.  II. 

to  them.  Besides,  my  lord,  I  am  a  knight,  and  I  ought  not  to  be  tried 
except  by  my  peers. ^ 

The  Justiciar.  Since  3'ou  are  a  knight,  we  are  willing  that  3-011  be 
judged  by  your  peers.  And  knights  were  named;  and  he  was  asked  if 
he  wished  to  propound  an}'  challenges  against  them. 

Hugh.  M3-  lord,  I  do  not  agree  to  them  ;  you  shall  take  whatever 
inquisition  30U  will  ex  officio,  but  I  will  not  agree. 

The  Justiciar.  Lord  Hugh,  if  you  will  agi-ee  to  them,  God  willing, 
the}'  will  find  for  you  if  you  will  only  consent  to  them.  But  if  you  will 
refuse  the  common  law,  you  will  incur  the  penalty  therefor  ordained,  to 
wit,  "  one  day  you  shall  eat,  and  the  next  da}-  you  shall  drink  ;  and  on 
the  day  when  you  drink  you  shall  not  eat,  and  e  coidra  ;  and  you  shall 
eat  barley-bread,  and  not  wheaten-bread,  and  drink  water,"  &c.  ex- 
plaining many  reasons  why  it  would  not  be  well  to  delaj'  at  this  point, 
but  would  be  better  to  agree  to  tliese. 

Hugh.  I  will  agree  to  my  peers,  but  not  to  the  twelve  by  whom  I 
am  accused;  wherefore  hear  my  challenges  against  them. 

The  Justiciar.  Willingly  ;  let  them  be  read ;  but  if  you  have  any- 
thing to  say  wherefore  the}'  ought  to  be  removed,  say  it  with  your  own 
voice  or  in  writing. 

Hugh.     My  lord,  I  pray  counsel,  for  I  cannot  read. 

The  Justiciar.     No,  for  it  is  a  matter  touching  our  Lord,  the  King. 

Hugh.     Do  3'ou  take  them  and  read  them. 

The  Justiciar.  No,  for  the}'  ought  to  be  proposed  by  your  own 
mouth. 

Hugh.     But  I  cannot  read  them. 

The  Justiciar.  How  is  this,  that  you  would  have  claimed  your 
benefit  of  clergy,  and  cannot  read  your  challenges?  (Hugh  stood  silent 
in  confusion.)  Do  not  be  struck  dumb,  now  is  the  time  to  talk.  (To 
Lord  N.  de  Leyc.)     Will  you  read  Lord  Hugh's  challenges? 

Lord  N.  My  lord,  if  I  do,  let  me  have  the  book  which  he  has  in  his 
hands.  (After  receiving  it)  My  lord,  here  are  written  challenges  against 
several ;  shall  I  read  them  aloud? 

The  Justiciar.  No,  just  read  them  secretly  to  the  prisoner,  for  they 
ought  to  be  offered  by  his  own  mouth.  And  so  it  was  done.  And 
when  they  had  been  offered  by  his  own  mouth,  since  they  were  found 
true  challenges,  those  against  whom  they  were  offered  were  removed 
from  the  inquisition. 

The  Justiciar.  We  challenge  Lord  Hugh  of  rape  of  a  certain 
woman,  he  denies  it,  and  is  asked  how  he  will  be  tried  ;  he  says  by  a 
good  jury  ;  wherefore  for  good  or  ill  he  puts  himself  upon  you  ;  and  so 

1  Magna  Charta  (9  H.  3.)  c.  29.  No  freeman  shall  be  taken,  or  imprisoned,  or  be 
disseised  of  his  freehold,  or  liberties,  or  free  customs,  or  be  outlawed,  or  exiled,  or  any 
otherwise  destroyed ;  nor  we  will  not  pass  upon  him  nor  condemn  him,  but  by  lawful 
judgement  of  his  peers,  or  by  the  law  of  the  land.  We  will  sell  to  no  man,  we  will 
not  deny  or  defer  to  any  man  either  justice  or  right. 


SECT.  I.]  NOliRIS    V.    BUTTINGIIAM.  37 

we  enjoin  3-ou  by  virtue  of  your  oatli,  tell  us  whether  Lord  Hugh  ravished 
the  aforesaid  woman  or  not. 

2'he  Twelve.  We  say  that  she  was  ravished  by  force  by  Lord  Hugh's 
men. 

The  Justiciar.     Was  Hugh  consenting  to  the  act  or  not? 

TIte  Tivdve.      No. 

The  Justiciar.     Did  they  know  her  carnally  ? 

The  Twelve.     Yes. 

The  Justiciar.     Was  the  woman  unwilling  or  consenting? 

The  Twelve.     Consenting.^ 

The  Justiciar.     Lord  Hugh,  since  they  acquit  you,  we  acquit  you. 


FABIAN  V.  GODFREY. 
Wiltshire  Eyre.     1198. 

\Ahhreviatio  Placitorum,  17.] 

Fabian  appealed  Godfrey  Spileman's  son  for  that  he  and  Roger  his 
son  and  Humphrey  his  man  wickedly  at  night  burned  his  dwelling 
house ;  and  this  he  offers  to  prove  against  him  as  of  his  own  siglit,  as 
the  court  of  our  lord  the  king  shall  determine,  considering  that  he  is  a 
man  over  age.     And  Godfrey  defends  for  himself  and  his  fellows. 

The  jurors  being  asked,  said  that  they  do  not  believe  that  Godfrey 
or  any  of  his  fellows  did  this;  and  that  Fabian  is  a  man  who  often  goes 
out  of  his  head.^ 


NORRIS  V.  BUTTINGHAM. 
Strafford  Eyre.     1198. 

[1  Rotuli  Curice  Regis,  205.] 

The  jurors  say  that  William  Norris  appealed  William  de  Buttinghara 
and  Robert  his  son  for  that  in  the  peace  of  the  king,  wickedly  and  in 
hamsoke  they  robbed  from  him  six  shillings  and  sixpence  of  his  chat- 
tels, and  robbed  from  his  possession  twenty-four  lambs,  and  broke  the 
doors  of  his  house  in  his  possession,  and  [robbed  from  him]  chattels 
to  the  value  of  ten  shillings ;  and  this  he  offers  to  prove  by  his  body  as 
the  court  shall  consider. 

William  and  Robert  defend  all,  word  by  word  ;  and  they  say  that 
Maurice  held  of  the  said  William  in  fee;  and  at  his  death  William 
entered  into  his  fee,  and  Alexander  Fitz-Philip  hired  of  him  in  the  fee 

1  Credo  quod  deberet  hic  quod  tajnen  post  defuit. — Rep. 

*  For  cases  on  the  modern  law  of  Arson,  see  Chap.  XVIII.  —  Ed. 


38       LUKE  DE  BROCHESHEVET  V.  WALTER  DE  MAREN,   [CHAP  II, 

a  pasture  for  twenty-five  sheep.  And  afterwards  this  William  Norris 
came  to  that  fee  and  carried  away  the  lambs  and  put  them  in  another 
fee  and  detained  them ;  so  that  the  said  William  de  Buttingham  and 
Robert  his  son  went  to  William  Fitz-Gerard,  serjeant  of  the  hundred, 
and  through  him  regained  possession  of  the  sheep  by  replevin.  And 
the  Serjeant  testified  to  this  fact. 

And  the  whole  county  testify  that  men  are  thus  appealed  according 
to  their  custom. 

It  is  considered  that  the  appeal  against  them  is  null.  Judgment: 
William  Norris  is  amerced  for  a  false  appeal,  and  William  and  Robert 
are  acquitted.* 


REX  V.  HUGH. 

WiLTSHiKE  Eyre.     1198. 

\_Ahhreviatio  Placitorum,  1 9.] 

Robert  de  Lucy  was  robbed  by  Hugh  Brien's  brother  and  Nicholas 
Fitz  priest  and  EUas  a  relative  of  Brien's  wife,  and  many  others  whom 
the  jurors  [are  unable?]  to  enumerate,  in  time  of  war;  and  the  robbers 
have  not  come  to  the  peace  of  our  lord  the  king.  And  Brian  is  out- 
lawed. And  Hugh  his  brother  and  Nicholas  Fitz-priest  and  Elias  the 
relative  of  Brien's  wife  are  to  be  sought  through  the  county ;  and 
unless  they  appear  let  them  be  judged  by  law  of  the  county.^ 


LUKE  DE  BROCHESHEVET  v.  WALTER  DE  MAREN. 

Hertford  Eyre.     1198. 
[1  Rotuli  CuricB  Regis,  160.] 

The  jurors  say  that  Luke  of  Brocheshevit  appealed  Walter  of  Maren 
and  Godfrey  Trenchevent  of  the  theft  of  a  cow.  AV alter  was  essoined 
as  beyond  sea.  And  Godfrey  does  not  come.  His  pledge  was  William 
of  Maren  ;  so  he  is  in  mercy. 

They  say  likewise  that  the  said  Luke  appealed  the  said  Walter  for 
that  in  the  peace  of  the  king,  and  in  felony  he  stole  his  wife  Felicia 
and  his  seal  and  his  chattels  to  the  value  of  one  hundred  shillings  ;  and 
this  he  off"ers  to  prove  as  the  court  shall  consider.  It  is  to  await  the 
coming  of  the  justices.® 

1  For  cases  on  the  modern  law  of  Burglary,  see  Chap.  XVIII.  —  Ed, 

2  For  cases  on  the  modern  Law  of  Robbery,  see  Chap.  XIV.,  Sect.  XVII.  — Ed. 
8  For  cases  on  the  modern  law  of  Larceny,  see  Chap.  XIV.  —  Ed, 


SECT.  II.]  KEX  V.   COOK.  39 

HUGH  OF  RUPERES  v.   JOHN  OF  ASHBY. 

Lincolnshire  Eyre.     1202. 
[1  Selden  Soc.  14.] 

Hugh  of  Ruperes  appeals  John  of  Ashby  for  that  he  in  the  king's 
peace  and  wickedl}'  came  into  his  meadows  and  depastured  them  with 
his  cattle,  and  this  he  offers,  etc.  And  John  comes  and  defends  all  of 
it.  And  whereas  it  was  testified  by  the  sheriff  and  the  coroners,  that 
in  the  first  instance  [Hugh]  had  appealed  John  of  depasturing  his 
meadows  and  of  beating  his  men,  and  now  wishes  to  pursue  his  appeal 
not  as  regards  his  men,  but  onl}-  as  regards  his  meadows,  and  whereas 
an  appeal  for  depasturing  meadows  does  not  appertain  to  the  crown  of 
our  lord  the  king,  it  is  considered  that  the  appeal  is  null,  and  so  let 
Hugh  be  in  mercy  and  John  be  quit. 

Hugh  is  in  custody,  for  he  cannot  find  pledges. 


SECTION   11. 

Misdemeanors. 


REX  V.  COOK. 

Middlesex  Sessions.     1696. 

[Reported  Comberbach,  382.] 

Upon  an  indictment  setting  fortli  that  Sir  John  Friend  and  Sir  Wil- 
liam Perkins  being  attainted  and  about  to  be  executed  at  Tyburn  for 
high  treason,  etc.,  the  defendants,  conspiring  and  intending  (as  much 
as  in  them  lay)  to  justify,  or  at  least  to  extenuate  and  lessen  their 
crimes,  and  to  induce  his  majesty's  subjects  to  believe  that  they  died 
ratlier  as  martyrs  than  as  traitors,  and  to  incite  the  king's  subjects  to 
commit  the  like  treasons,  they  did  take  upon  them  to  absolve,  and  did 
pronounce  a  form  of  absolution  of  them,  the  said  Sir  William  Perkins 
and  Sir  John  Friend,  without  any  repentance,  or  any  signs  of  repent- 
ance by  them  given. 

It  was  proved  that  the  defendants  asked  the  criminals  the  several 
questions  directed  by  the  rubrick  in  the  office  of  visitation  of  the  sick, 
and  Mr.  Cook  pronounced  the  words  of  absolution  of  one  of  the 
traitors,  Mr.  Snatt  and  one  Mr.  Collier  (who  is  not  now  indicted)  lay- 
ing their  hands  upon  his  head,  and  after  the  words  pronounced  saying 
Amen ;  and  Mr.  Collier  pronounced  the  words  as  to  the  other  traitors, 
they  all  three  laying  on  their  hands,  etc. 

It  was  proved  that  the  defendants  were  earnestly  requested  by  Sir 
William  Perkins  and  Sir  John  Friend  to  assist  them  at  the  place  of 


40  STATE   V.   JACKSON.  [CHAP.  I!. 

execution  ;  and  therefore  the  jur}'  were  directed  to  acquit  them  of  the 
conspiracy,  though  the  Attorney  General  said  the  indictment  was  not 
for  conspiracy,  and  conspirantes  was  put  adjectively  only  to  introduce 
the  other  matter,  and  therefore  was  not  material. 

And  Holt  [L.  C.  J.]  directed  the  jury  that  this  proceeding  of  the 
defendants  was  certainly  scandalous  and  irregular ;  for  if  the  criminals 
had  before  made  a  private  confession,  the  absolution  should  have  been 
private  likewise  ;  but  if  they  would  give  a  public  absolution,  they  ought 
to  have  required  as  public  a  confession,  and  particularly  with  respect 
to  those  crimes  for  which  they  were  attainted,  being  so  notorious,  etc. 
However,  if  the  jur}^  were  of  opinion  that  they  did  it  only  ignorantly 
and  by  mistake  (in  which  case  it  is  properly  conusable  in  the  Spiritual 
court),  then  to  acquit  them  ;  but  if  they  did  it  with  a  design  to  affront 
the  government,  and  to  vilify  the  justice  of  the  nation,  then  to  find 
them  guilty. 

But  at  the  instance  of  the  defendant's  counsel  it  was  directed  to  be 
found  specially  that  Snatt  laid  his  hand  on  the  head,  and  was  assistant 
while  the  other  pronounced  the  words  of  absolution,  and  afterwards 
Snatt  said  Amen  (it  being  laid  quod  i^romintiaverunt). 

And  accordingly  the  jury  acquitted  them  of  the  conspiracy,  and  found 
Cook  guilty  of  the  rest ;  and  as  to  Snatt,  ut  siqjra} 


STATE  V.  JACKSON. 

Supreme  Judicial  Court  of  Maine.    1881. 

[Reported  73  Maine,  81.] 

LiBBEY,  J.  This  is  an  indictment  against  the  defendant  for  unlaw- 
full}'  and  wilfully  attempting  to  influence  a  qualified  voter  to  give  in 
his  ballot  at  a  municipal  election,  in  the  city  of  Rockland,  by  offering 
and  paying  him  money  therefor. 

The  offence  charged  is  not  within  R.  S.,  c.  4,  §  67. 

Is  bribery  at  a  municipal  election  a  misdemeanor  at  common  law  in 
this  state?  It  is  claimed  by  the  learned  counsel  for  the  defendant, 
that  it  is  not  recognized  as  such  in  this  country.  We  think  it  is.  It 
was  an  offence  at  common  law  in  England.  1  Russell  on  Crimes,  154 ; 
Plympton's  Case,  2  Ld.  Raym.  1377  ;  Rex  v.  Pitt,  3  Burr.  1335. 

The  common  law  of  England  upon  the  subject  of  bribery,  fraud  and 
corruption  at  elections,  is  generally  adopted  as  the  common  law  in 
this  country.  Comra.  v.  Silsbeee,  9  Mass.  417  ;  Comm.  v.  Hoxey,  16 
Mass.  385  ;  1  Bish.  Crim.  Law,  355  ;  Walsh  v.  The  People,  65  111.,  58  ; 
State  V.  Purdy,  36  Wis.  224  ;  State  v.  Collier,  72  Mo.  13  ;  People  v. 
Thornton,  32  Hun  (N.  Y.)  456  ;  Comm.  of  Penn.  v.  McHale,  97  Pa.  397. 

Bishop  in  his  work  on  Criminal  Law,  vol.  1,  §  922,  says  :  "  We  see  it 
to  be  of  the  highest  importance  that  persons  be  elected  to  carry  on  the 

»  See  Rex  v.  Noel,  Comb.  362  ;  Penns.  v.  Morrison,  Add.  (Pa.)  274.  —  Ed. 


SECT.  II.]  COMMONWEALTH   V.    SILSBEE.  4i 

government  in  its  various  departments,  and  that  in  every  case  a  suit- 
able choice  be  made.  Therefore  any  act  tending  to  defeat  these 
objects,  as  forcibly  or  unlawfully  preventing  an  election  being  held, 
bribing  or  corruptly  influencing  an  elector,  casting  more  than  one  vote, 
is  punishable  under  the  criminal  common  law." 

Paxon,  J.,  in  the  opinion  of  the  court  in  Cornm.  v.  McILile,  supra, 
says:  "We  are  of  opinion  that  all  such  crimes  as  especially  affect 
public  society,  are  indictable  at  common  law.  The  test  is  not  whether 
precedents  can  be  found  in  the  books,  but  whether  they  affect  the 
public  policy  or  economy.  It  needs  no  argument  to  show  that  the  acts 
charged  in  these  indictments  are  of  this  character.  They  are  not  only 
offences  which  affect  public  society,  but  they  affect  it  in  the  gravest 
manner.  An  offence  against  the  freedom  and  purity  of  the  election 
is  a  crime  against  the  nation.  It  strikes  at  the  foundation  of  repubi 
can  institutions.  Its  tendency  is  to  prevent  the  expression  of  the  w 
of  the  people  in  the  choice  of  rulers,  and  to  weaken  the  public  coiT» 
dence  in  elections.  When  this  confidence  is  once  destro3ed,  the  end 
of  popular  government  is  not  distant.  Surely  if  a  woman's  tongue 
can  so  far  affect  the  good  of  society  as  to  demand  her  punishment  as  a 
common  scold,  the  offence  which  involves  the  right  of  a  free  people  to 
choose  their  own  rulers  in  the  manner  pointed  out  by  law,  is  not  be- 
neath the  dignit}'  of  the  common  law,  nor  bcA'ond  its  power  to  punish. 
The  one  is  an  annoyance  to  a  small  portion  of  the  body  politic,  the 
other  shakes  the  social  fabric  to  its  foundations." 

We  have  no  doubt  that  bribery  at  a  municipal  election  is  a  misde- 
meanor punishable  by  the  common  law  of  this  state. 

An  attempt  to  bribe  or  corruptly  influence  the  elector,  although  not 
accomplished,  will  submit  the  offender  to  an  indictment.  State  v. 
Ames,  64  Maine,  386. 

But  admitting  that  attempting  to  bribe  an  elector  at  a  municipal 
election  is  an  offence  at  common  law,  it  is  claimed  b}'  the  counsel  for 
the  defendant  that  the  indictment  in  this  case  does  not  properly  charge 
such  offence.^ 

Exceptions  overruled,  Judgment  for  the  State." 


COMMONWEALTH  v.   SILSBEE. 
Supreme  Judicial  Court  of  Massachusetts.     1812. 

[Reported  9  Massachusetts,  417.] 

The  indictment  charged  that  the  defendant,  being  admitted  as  a 
legal  voter  at  the  town  meeting  holden  on  the  eleventh  day  of  March, 
1811,  at  Salem,  for  the  choice  of  town  officers,  "did  then  and  there 

1  In  the  subsequent  portion  of  his  opinion  the  learned  judge  held  that  this  chiiin 
was  unfounded.  —  Ed. 

2  Ace.  Taylor's  Case,  12  Mod.  314  ;  Reg.  i;.  Lancaster,  16  Cox,  C.  C.  637  ;  State  v, 
Davis,   2  Pennew.  (Del.)  139  ;  State  v  .  EUis,  33  N.  J.  Law.  102. 


42  COMMONWEALTH   V.   SILSBEE.  [CHAP.  U. 

wilfully,  fraudulently,  knowingly,  and  designedly  give  in  more  than 
one  vote  for  the  choice  of  selectmen  for  said  town  of  Salem  at  one 
time  of  balloting  ;  to  the  great  destruction  of  the  freedom  of  elections, 
to  the  great  prejudice  of  the  rights  of  the  other  qualified  voters  in  said 
town  of  Salem,  to  the  evil  example  of  others  in  like  case  to  offend, 
and  against  the  peace  and  dignity  of  the  Commonwealth  aforesaid,  and 
the  law  of  the  same  in  such  case  made  and  provided." 

After  conviction  the  defendant  moved  in  arrest  of  judgment,  on  the 
ground  of  the  insufficiency  of  the  indictment. 

Bayie,  for  the  defendant.  Here  is  no  offence  charged.  The  defend- 
ant put  more  than  one  vote  for  selectmen  into  the  box  at  one  time ; 
and  he  might  well  do  this,  since  not  less  than  three  selectmen  were  to 
be  voted  for. 

The  offence,  if  any  is  described  in  the  indictment,  cannot  be  such 
by  the  common  law,  since  that  law  knows  nothing  of  the  office  of 
selectmen.  If  the  offence  is  created  by  statute,  the  indictment  ought 
to  conclude  contra  formam  statuti ;  and  if  the  conclusion  of  this  be 
considered  so,  it  belongs  to  the  government  to  produce  the  statute 
against  which  the  offence  was  committed.  But  none  such  can  be 
found  ;  and  the  usual  punishment  applied  to  the  act,  that  of  rejecting 
the  party's  vote,  is  probably  all  that  the  government  thought  necessary 
or  convenient. 

By  the  Statute  of  1795,  c.  55,  a  fine  not  exceeding  twenty  nor  less 
than  ten  dollars  was  provided  for  such  as  should  give  in  more  than 
one  vote  in  the  election  of  State  officers.  It  appears  that  the  Legisla- 
ture did  not  contemplate  that  offence,  though  of  an  higher  grade  than 
that  here  intended  to  be  prosecuted,  worthy  of  the  severe  punishment 
which  may  b}-  the  common  law  be  imposed  on  misdemeanors.  Indict- 
ments of  this  kind  are  of  late  origin,  which  is  an  argument  that  they 
do  not  lie  at  common  law. 

No  fraud  is  alleged  in  the  indictment ;  for  as  to  the  general  words 
"  fraudulently,"  &c.,  they  have  no  operation,  being  merely  formal. 

The  Solicitor-General  insisted  that  this  was  a  fraud,  upon  which  the 
common  law  would  animadvert.  It  was  a  direct  infringement  of  the 
highest  political  rights  of  others.  The  indictment,  as  to  its  form,  is 
conformed  to  the  provisions  of  the  statute  of  1800,  c.  74,  respecting 
the  votes  to  be  given  for  the  governor,  &c.  of  the  Commonwealth. 
The  mischief  is  growing  in  various  parts  of  the  Commonwealth,  and 
unless  restrained  will  shortly  destroy  the  purity  of  our  elections,  and 
with  that  will  go  our  most  valued  political  institutions. 

Curia.  There  cannot  be  a  doubt  that  the  offence  described  in  the 
indictment  is  a  misdemeanor  at  common  law.  It  is  a  general  prin- 
ciple that  where  a  statute  gives  a  privilege,  and  one  wilfully  violates 
such  privilege,  the  common  law  will  punish  such  violation.  In  town 
meetings  every  qualified  voter  has  equal  rights,  and  is  entitled  to  give 
one  vote  for  every  officer  to  be  elected.  The  person  who  gives  more 
infringes   and   violates  the  rights  of  the    other   voters,  and  for  this 


SECT.  II.J  KKX   V.   IVENS.  43 

offence  the  common  law  gives  the  indictment;  and  the  conclusion  of 
the  one  at  bar  is  proper  for  the  case. 

The  defendant  was' adjudged  to  pay  a  fine  often  dollars 
with  the  costs  o/ prosecution.^ 


REX  V.  JONES. 
King's  Bench.     1740. 
[Reported  2  Strange,  1146.] 

He  was  Indicted  for  not  taking  upon  him  the  office  of  overseer  of  the 
poor,  upon  a  regular  appointment ;  and  on  demurrer  objected,  that  as 
he  was  to  take  no  oath,  and  the  43  Uliz.  e.  2,  had  inflicted  pecuniary 
penalties  for  neglect  of  duty  to  be  recovered  in  a  summary  way,  he 
could  not  be  indicted. 

Sed per  Curiam,  those  penalties  are  for  neglect  of  duty  when  he  is 
the  officer,  whereas  this  indictment  says  he  has  obstinately  refused  to 
take  the  office  upon  him  :  the  disobeying  an  act  of  Parliament  is  indict- 
able upon  the  principles  of  the  common  law. 

Judgment  for  the  King.^ 


REX   V.    IVENS. 
Oxford   Circuit.     1835. 

[Reported  7  Car.  <j-  Payne,  213.] 

Indictment  against  the  defendant,  as  an  innkeeper,  for  not  receiv- 
ing Mr.  Samuel  Probyn  Williams  as  a  guest  at  his  inn,  and  also  for 
refusing  to  take  his  horse.  Tiie  first  count  of  the  indictment  averred 
that  the  prosecutor  had  offered  to  pay  a  reasonable  sum  for  his  lodg- 
ings ;  and  the  first  and  second  counts  both  stated  that  there  was  room 
in  the  inn.  The  third  count  omitted  these  allegations,  and  also  omitted 
all  mention  of  the  horse.  The  fourth  count  was  similar  to  the  third, 
but  in  a  more  general  form.     Plea  —  Not  guilty. 

It  was  opened  by  Whitmore,  for  the  prosecution,  that  the  defendant 
kept  the  Bell  Inn,  at  Chepstow,  and  that  the  prosecutor  Mr.  Williams 
had  gone  there  on  horseback,  on  the  night  of  Sunday  the  14th  of  April ; 
and  that  the  defendant  and  his  wife  both  refused  him  admittance  into 
the  inn. 

Godson,  for  the  defendant.  —  Does  your  Lordship  think  that  an 
indictment  lies  against  an  innkeeper  for  refusing  to  receive  a  guest? 

1  Ace.  Com.  V.  Hoxey,  16  Mass.  385. 

2  See  Huufferford's  Case,  11  Mod.  142. 


44  REX  V.  IVENS.  [chap.  II. 

I  know  that  an  action  ma}-  be  brought  against  him  if  he  does  so  ;  and 
such  an  action  was  brought  against  an  innkeeper  at  Lancaster  a  lew 
)-ears  ago.  This  is  only,  at  most,  a  private  injury  to  Mr.  Williams, 
and  not  an  offence  against  the  public. 

Coleridge,  J.  There  can  be  no  doubt  that  this  indictment  is  sus- 
tainable in  point  of  law.  Mr.  Serjeant  Hawkins  distinctly  lays  it  down 
that  an  indictment  lies  for  this  offence.^ 

Coleridge,  J.  (in  summing  up).  The  facts  in  this  case  do  not 
appear  to  be  much  in  dispute  ;  and  though  I  do  not  recollect  to  have 
ever  heard  of  such  an  indictment  having  been  tried  before,  the  law 
applicable  to  this  case  is  this:  — that  an  indictment  lies  against  an 
innkeeper  who  refuses  to  receive  a  guest,  he  having  at  the  time  room 
in  his  house ;  and  either  the  price  of  the  guest's  entertainment  being 
tendered  to  him,  or  such  circumstances  occurring  as  will  dispense  with 
that  tender.  This  law  is  founded  in  good  sense.  The  innkeeper  is  not 
to  select  his  guests.  He  has  no  right  to  say  to  one,  you  shall  come 
into  my  inn,  and  to  another  you  shall  not,  as  every  one  coming  and 
conducting  himself  in  a  proper  manner  has  a  right  to  be  received  ;  and 
for  this  purpose  innkeepers  are  a  sort  of  public  servants,  they  having 
in  return  a  kind  of  privilege  of  entertaining  travellers,  and  supi)lying 
them  with  what  they  want.  It  is  said  in  the  present  case  that  Mr. 
Williams,  the  prosecutor,  conducted  himself  improperly,  and  therefore 
ought  not  to  have  been  admitted  into  the  house  of  the  defendant.  If 
a  person  came  to  an  inn  drunk,  or  behaved  in  an  indecent  or  improper 
manner,  I  am  of  opinion  that  the  innkeeper  is  not  bound  to  receive  him. 
You  will  consider  whether  Mr.  Williams  did  so  behave  here.  It  is 
next  said  that  he  came  to  the  inn  at  a  late  hour  of  the  night,  when 
probably  the  family  were  gone  to  bed.  Have  we  not  all  knocked  at  inn 
doors  at  late  hours  of  the  night,  and  after  the  family  have  retired  to 
rest,  not  for  the  purpose  of  annoyance,  but  to  get  the  people  up?  In 
this  case  it  fnrther  appears  that  the  wife  of  the  defendant  has  a  con- 
versation with  the  prosecutor,  in  which  she  insists  on  knowing  his 
name  and  abode.  I  think  that  an  innkeeper  has  no  right  to  insist  on 
knowing  those  particulars  ;  and  certainly  you  and  I  would  think  an 
innkeeper  very  impertinent,  who  asked  either  the  one  or  the  other 
of  any  of  us.  However,  the  prosecutor  gives  his  name  and  residence ; 
and  supposing  that  he  did  add  the  words  "  and  be  damned  to  you,"  is 
that  a  sufficient  reason  for  keeping  a  man  out  of  an  inn  who  has 
travelled  till  midnight?  I  think  that  the  prosecutor  was  not  guilty 
of  such  misconduct  as  would  entitle  the  defendant  to  shut  him  out 
of  his  house.  It  has  been  strongly  objected  against  the  prosecutor 
by  Mr.  Godson,  that  he  had  been  travelling  on  a  Sunday.  To  make 
that  argument  of  any  avail,  it  must  be  contended  that  travelling  on 
a  Snnday  is  illegal.  It  is  not  so,  although  it  is  what  ought  to  be 
avoided  whenever  it  can  be.     Indeed  there  is  one  thing  which  shows 

1  The  evidence  is  omitted  —  Ed. 


SECT.  II.]  CROUTHER'S    CASE.  45 

that  travelling  on  a  Sunday  is  not  illegal,  which  is,  that  in  many  places 
you  pay  additional  toll  at  the  turnpikes  if  you  pass  through  them  on 
a  Sunday,  by  which  the  legislature  plainly  contemplates  travelling  on 
a  Sunday  as  a  thing  not  illegal.  I  do  not  encourage  travelling  on  Sun- 
days, but  still  it  is  not  illegal.  With  respect  to  the  non-tender  of 
money  b}'  the  prosecutor,  it  is  now  a  custom  so  universal  with  inn- 
keepers, to  trust  that  a  person  will  pay  before  he  leaves  an  inn,  that 
it  cannot  be  necessary  for  a  guest  to  tender  money  before  he  goes  into 
an  inn;  indeed,  in  the  present  case  no  objection  was  made  that  Mr. 
Williams  did  not  make  a  tender  ;  and  they  did  not  even  insinuate  that 
they  had  any  suspicion  that  he  could  not  pay  for  whatever  entertain- 
ment might  be  furnished  to  him.  I  think,  therefore,  that  that  cannot 
be  set  up  as  a  defence.  It  however  remains  for  me  next  to  consider 
the  case  with  respect  to  the  hour  of  the  night  at  which  Mr.  Williams 
applied  for  admission  ;  and  the  opinion  which  I  have  formed  is,  that 
the  lateness  of  the  hour  is  no  excuse  to  tlie  defendant  for  refusing  to 
receive  the  prosecutor  into  his  inn.  Why  are  inns  established?  For 
the  reception  of  travellers,  who  are  often  very  far  distant  from  their 
own  liomes.  Now,  at  what  time  is  it  most  essential  that  travellers 
should  not  be  denied  admission  into  the  inns?  I  should  say  when  they 
are  benighted,  and  when,  from  any  casualty,  or  from  the  badness  of 
the  roads,  they  arrive  at  an  inn  at  a  very  late  hour.  Indeed,  in  former 
times,  when  the  roads  were  much  worse,  and  were  much  infested  with 
robbers,  a  late  hour  of  the  night  was  the  time,  of  all  others,  at  which 
the  traveller  most  required  to  be  received  into  an  inn.  I  think,  tliere- 
fore,  that  if  the  traveller  conducts  himself  properk,  the  innkeeper 
is  bound  to  admit  liim,  at  whatever  hour  of  the  night  he  may  arrive. 
The  only  other  question  in  this  case  is,  whether  the  defendant's  inn 
was  full.  Tliere  is  no  distinct  evidence  on  the  part  of  tlie  prosecution 
that  it  was  not.  But  I  think  the  conduct  of  the  parties  shews  that  the 
inn  was  not  full;  because,  if  it  had  been,  there  could  have  l)een  no  use 
in  the  landlady  asking  the  prosecutor  his  name,  and  saying,  that  if 
he  would  tell  it,  she  would  ring  for  one  of  the  servants. 

Verdict  Guilty. 
Park,  J.,  sentenced  the  defendant  to  pay  a  fine  of  20s.^ 


CROUTHER'S   CASE. 

Queen's  Bench.     1598. 

[Reported  Croke  Eliz.  654.] 

Crouther  was  indicted,  for  that  a  burglary  was  committed  in  the 
night  by  persons  unknown,  and  J.  S.  gave  notice  thereof  unto  him. 
being  then   constable,  and  required  him  to  make  hue  and  cry,  and  he 
»  See  Rex  v.  Taylor,  Willes,  538  note;  Reg  v.  James,  2  Den.  C.  C.  1. 


46  COMMONWEALTH    V.   CALLAGHAN.  [CHAP.  II. 

refused,  etc.  Exception  was  taken  to  the  matter  of  the  indictment, 
because  it  hath  been  adjudged  that  an  hundred  shall  not  be  charged 
with  a  robbery  committed  in  the  night,  because  they  are  not  bound  to 
give  attendance  ;  no  more  ought  a  constable  to  do  it  in  the  night.  But 
all  the  Court  held  the  indictment  to  be  good,  notwithstanding ;  for  it  is 
not  like  to  the  case  of  an  liundred  ;  because  it  is  the  constable's  duty, 
upon  notice  given  unto  him,  presently  to  pursue.^  And  it  was  said 
that  in  every  case  where  a  statute  prohibits  anything,  and  doth  not 
limit  a  penalty,  the  party  offending  therein  may  be  indicted,  as  for  a 
contempt  against  the  statute.^ 

Another  exception  was  taken,  because  he  did  not  shew  the  place  of 
the  notice ;  and  that  was  held  to  be  material.  Whereupon  the  party 
was  discharged. 

COMMONWEALTH  v.  CALLAGHAN. 
General  Court  of  Virginia.     1825. 

[Reported  2  Virginia  Cases,  460.] 

This  was  a  case  adjourned  by  the  Superior  Court  of  Law  of  Alleghany 
County.  The  case  itself  is  fully  set  forth  in  the  following  opinion  of 
the  General  Court,  delivered  by  Barbour,  J.  :  — 

This  is  an  adjourned  case  from  the  Superior  Court  of  Law  for  the 
County  of  Alleghany. 

It  was  an  information  filed  against  Callaghan  and  HoUoway,  two  of 
the  justices  of  Alleghany,  alleging  in  substance  the  following  charge  : 
That  at  a  court  held  for  the  county  of  Alleghany,  there  was  an  election 
for  the  office  of  commissioner  of  the  revenue  and  of  clerk  of  said  court, 
when  the  defendants  were  both  present,  and  acting  in  their  official 
character  as  magistrates  in  voting  in  said  election  ;  that  the  defendant 
Callao-han,  in  said  election  for  commissioner  of  the  revenue,  wickedly 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  W.  G.  HoUoway,  to  be  said  commissioner, 
in  consideration  of  the  promise  of  the  defendant  HoUoway  that  he 
would  vote  for  a  certain  Oliver  Callaghan  to  be  clerk  of  said  court ; 
and  that  the  defendant  HoUoway  in  the  said  election  of  clerk  wickedly 
and  corruptly  agreed  to  vote,  and  in  pursuance  of  said  corrupt  agree- 
ment did  vote,  for  a  certain  Oliver  Callaghan  to  be  said  clerk,  in  con- 
sideration of  the  promise  of  the  defendant  Callaghan  that  he  would  vote 
for  the  aforesaid  W.  G.  HoUoway  to  be  commissioner.  To  this  infor- 
mation the  defendants  demurred  generally,  and  there  was  a  joinder  in 
the  demurrer.  The  Superior  Court  of  Law  of  Alleghany,  with  the 
assent  of  the  defendants,  adjourned  for  novelty  and  difficulty  to  this 
court  the  questions  of  law  arising  upon  the  demurrer  to  the  informa- 
tion, and  particularly  the  following,  namely  :  — 

1  See  Keg.  v.  Wiatt,  11  Mod.  53;  State  v.  Haywood,  3  Jones  (N.  C),  399. 
«  See  State  v.  Parker,  91  N.  C.  650.  — Ed. 


SECT.  Il]  COMMONWEALTH   V.   CALLAGHAN.  47 

1.  Is  there  any  offence  stated  in  said  information  for  which  an  infor- 
mation or  indictment  will  lie  ? 

2.  Is  the  offence  charged  in  the  said  information  within  the  true 
intent  and  meaning  of  the  Act  of  the  General  Assembly  entitled  "  An 
Act  against  buying  and  selling  offices,"  passed  Oct.  19,  1792,  in  page 
559,  1st  vol.  Rev.  Code  of  1819? 

3.  If  the  offence  be  within  the  said  act,  is  the  information  filed  in 
this  case  a  good  and  sufficient  information? 

The  first  and  second  questions,  for  the  sake  of  convenience,  will  be 
considered  together. 

It  is  proper  to  premise  that  a  general  demurrer  admits  the  truth  of 
all  facts  which  are  well  pleaded  ;  there  being  such  a  demurrer  in  this 
case,  and  the  information  distinctly  alleging  that  the  defendants,  in 
giving  tlieir  votes  respectively,  acted  wickedly  and  corruptly,  such 
wicked  and  corrupt  motive  will  be  considered  throughout  as  forming  a 
part  of  the  case. 

The  court  are  unanimously  of  opinion  that  the  case  as  stated  in  the 
information  is  not  within  the  true  intent  and  meaning  of  the  Act  of 
Assembl}'  referred  to  in  the  second  question.  That  act  embraces  two 
descriptions  of  cases  :  1.  The  sale  of  an  office  or  the  deputation  of  an 
office  ;  2.  The  giving  a  vote  in  appointing  to  an  office  or  the  deputa- 
tion of  office.  It  would  be  within  the  latter  description  that  this  case 
would  fall,  if  within  either  ;  but  the  court  are  decidedlj'  of  opinion  that 
this  case  does  not  fall  within  this  description,  because  the  plain  con- 
struction of  the  statute  is  that  the  penalties  which  it  denounces  are 
incurred  only  In-  those  who  receive  or  take,  either  directl}'  or  indirectly, 
any  money,  profit,  &c.,  or  the  promise  to  have  any  money,  profit,  &c., 
to  their  own  use  or  for  their  own  benefit.  In  this  case  it  appears  from 
the  information  that  the  promise  of  each  of  the  defendants  to  the  other, 
which  constituted  the  consideration  of  the  vote  of  that  other,  and  the 
vote  given  in  consequence  of  such  promise,  inured  not  to  the  benefit  of 
the  defendants  or  either  of  them,  but  to  the  benefit  of  others.  If  indeed 
it  had  been  alleged  in  tlie  information  that  the  persons  for  whom  the 
votes  were  given,  were,  if  elected,  to  have  held  them  upon  any  agree- 
ment, that  the  defendants  should  in  any  degree  participate  in  their 
profits  or  receive  from  the  holders  of  them  an}'  benefit  or  advantage, 
the  case  would  have  been  different,  for  then  the  defendants  would  have 
received  a  profit  indirectly,  and  thus  would  have  fallen  within  the  stat- 
ute ;  but  there  is  no  such  allegation. 

The  court  being  thus  of  opinion  tliat  this  case  was  not  embraced  by 
the  statute,  but  at  the  same  time  considering  that  that  system  of  crim- 
inal jurisprudence  must  be  essentially  defective  which  had  provided  no 
punishment  for  acts  such  as  arc  charged  in  the  information,  and  which 
merit  the  reprehension  of  all  good  men,  were  led  to  inquire  whether  the 
acts  charged  in  the  information  did  not  constitute  an  offence  at  common 
law  ;  and  they  are  of  opinion  that  the}'  do. 

In  relation  to  those  offences  which  rise  to  the  grade  of  felon\'  there 


48  COMMONWEALTH   V.   CALLAGHAN.  [CHAP.  IL 

is  usually,  particular!}'  in  the  designation  of  them  by  name,  an  accuracy 
in  the  definition  ;  as,  for  example,  murder,  burglary,  arson,  &c.,  in 
each  of  which  the  term  ex  vi  termini  imports  the  constituent  of  the 
offence  ;  but  in  the  general  classification  of  crimes  whatever  is  not 
"ylony  is  misdemeanor.  In  relation  to  these,  then,  they  are  not  onl}' 
umerous  but  indefinitel}-  diversified,  comprehending  every  act  which, 
liiilst  it  falls  below  the  grade  of  felony,  is  either  the  omission  of  some- 
thing commanded  or  the  commission  of  something  prohibited  by  law. 
As  to  these  the  law  can  do  no  more  than  lay  down  general  principles, 
and  it  belongs  to  the  courts  of  the  country  to  apply  those  principles  to 
the  particular  cases  as  they  occur,  and  to  decide  whether  the}'  are  or 
are  not  embraced  by  them.  Thus  the  law,  as  a  general  proposition, 
prohibits  the  doing  of  any  act  which  is  contra  bonos  mores.  The  par- 
ticular acts  which  come  up  to  this  description  it  is  impossible  to  include 
in  any  precise  enumeration  ;  thej-  must  be  decided  as  the}'  occur,  b}' 
applying  this  principle  to  them  as  a  standard.  Thus,  again,  it  is  now 
established  as  a  principle  that  the  incitement  to  commit  a  crime  is  itself 
criminal  under  some  circumstances.  6  East,  464 ;  2  East,  5.  As  for 
jxample,  the  mere  attempt  to  stifle  evidence,  though  the  persuasion 
should  not  succeed.  Cases  of  this  kind  may  be  as  various  as  the  vary- 
ing combinations  of  circumstances. 

To  come  more  iramediatel}-  to  the  present  case,  we  hold  it  to  be  a 
sound  doctrine  that  the  acceptance  of  ever\-  office  implies  the  tacit 
agreement  on  the  part  of  the  incumbent  that  he  will  execute  its  duties 
with  dihgence  and  fidelity'.  5  Bac.  Abr.  210,  Offices  and  Officers,  Let- 
ter M.  We  hold  it  to  be  an  equally  sound  doctrine  that  all  officers  are 
punishable  for  corruption  and  oppressive  proceedings,  according  to  the 
nature  and  heinousness  of  the  offence,  either  b}-  indictment,  attach- 
ment, action  at  the  suit  of  the  party  aggrieved,  loss  of  their  oflflces,  &c. 
5  Bac.  Abr.  212,  Letter  N. 

And  further,  that  all  wilful  breaches  of  the  dut}'^  of  an  ofl^ce  are  for- 
feitures of  it,  and  also  punishable  by  fine  (Co.  Litt.  233,  234),  because 
every  office  is  instituted,  not  for  the  sake  of  the  oflScer,  but  for  the  good 
of  another  or  others;  and,  therefore,  he  who  neglects  or  refuses  to 
answer  the  end  for  which  his  ofBce  was  ordained  should  give  way  to 
others,  and  be  punished  for  his  neglect  or  oppressive  execution. 

Let  us  apply  these  principles  to  the  present  case.  The  defendants 
were  justices  of  the  peace,  and  as  such  held  an  ofl3ce  of  high  trust  and 
confidence.  In  that  character  they  were  called  upon  to  vote  for  others, 
for  oflSces  also  implying  trust  and  confidence.  Their  duty  required 
them  to  vote  in  reference  only  to  the  merit  and  qualifications  of  the 
officers,  and  3'et  upon  the  pleadings  in  this  case  it  appears  that  they 
wickedl}"  and  corruptl}'  violated  their  duty  and  betra3"ed  the  confidence 
reposed  in  them,  by  voting  under  the  influence  of  a  corrupt  bargain  or 
reciprocal  promise,  by  which  they  had  come  under  a  reciprocal  obliga- 
tion to  vote  respectively  for  a  particular  person,  no  matter  how  inferior 
the  qualifications  to  their  competitors.      It  would  seem,  then,  upon 


SECT.  II.]  HEX    V.    SEYMOUR.  49 

these  general  principles  that  the  offence  in  the  information  is  indictable 
at  common  law.  But  there  are  authorities  which  api)ly  i)articuUuly  to 
the  case  of  justices.  In  1  Bl.  Com.  354,  n.  17,  Christian,  it  is  said  if  a 
magistrate  abuse  his  authority  from  corrupt  motives  he  is  punishable 
criminally  by  indictment  or  information. 

Again,  where  magistrates  have  acted  partially,  maliciously,  or  cor- 
ruptly, they  are  liable  to  an  indictment.  1  Term  Rep.  6132  ;  1  Burr. 
556  ;  3  Burr.  1317, 1716,  1786  ;  1  Wils.  7.  An  instance  of  their  acting 
partially  is  that  of  their  refusing  a  license  from  motives  of  partiality, 
the  form  of  the  indictment  for  which  is  given  in  2  Ciiitty's  Crim.  Law, 
253. 

We  are  then  of  opinion,  for  the  reasons  and  upon  the  authorities 
aforesaid,  that  the  offence  stated  in  the  information  is  a  misdemeanor 
at  common  law  for  which  an  information  will  lie,  but  that  it  is  not 
within  the  statute  referred  to. 

In  answer  to  the  third  question  we  are  of  opinion  that  the  informa- 
tion is  a  good  and  sufficient  one. 

All  which  is  ordered  to  be  certified  to  the  Superior  Court  of  Law  for 
Alleghany  County. 


REX   V.  SEYMOUR. 
King's  Bench.     1740. 

[Reported  7  Mod.  382.] 

Seymour,  Boyce,  Blatch,  and  Duffield  attended  at  the  king's  bench 
in  order  to  receive  judgment,  upon  their  being  found  guilty  upon  several 
informations.^ 

Chapple,  the  junior  Judge,  having  attended  Baron  Carter,  who  tried 
the  informations,  reported  to  the  Court  that  there  were  three  several 
informations,  one  against  8e3'mour,  and  Boyce,  a  justice  of  peace  ; 
another  against  the  same  Se3'mour,  and  Blatch,  a  justice  of  the  peace  ; 
and  a  third  against  the  said  Seymour,  and  Duffield,  a  justice  of  the 
peace. 

1  Ace.  Rex  V.  Chalk,  Comb.  396  ;  Anon.,  6  Mod.  96  ;  Reg.  v.  Back,  6  Mod.  306  ; 
Tyner  v.  U.  S.,  23  App.  D.  C.  324,  362  ;  People  v.  Coon,  15  Wend.  (N.  Y.)277;  Com. 
V.  Brown,  23  Pa.  Super.  Ct.  470.  "  However  reprehensible  it  may  be  for  a  member  of  the 
legislature  to  keep  'open  house'  for  the  entertainment  of  members,  where  they  may 
partake  of  '  light  refreshments,  wine,  beer,  liquors,  and  cigars,'  it  falls  short  of  estab- 
li.shing  a  case  of  bribery.  A  '  bribe '  is  defined  to  be  a  '  price,  reward,  gift,  or  favor 
bestowed  or  promised  with  a  view  to  pervert  the  judgment  or  corrupt  the  conduct  of  a 
judge,  witness,  or  other  person.'  '  To  bribe  '  means  '  to  give  a  bribe  to  a  person  to 
prevent  his  judgment  or  corru{)t  his  actions  by  some  gift  or  promise.'  To  give  enter- 
tainments for  the  purpose  of  unduly  influencing  legislation  is  wholly  bad  in  morals,  but 
does  not  constitute  the  crime  of  bribery."  Grant,  J.,  in  Randall  v.  Evening  News 
Ass'n,  97  Mich.  136,  56  N.  W.  361. 


50  KEX    V.    SEYMOUR.  [CHAP  II. 

The  otfence  stated  in  the  information,  was  matter  of  extortion  used 
by  Seymour  and  the  three  justices  against  several  foreigners  who  were 
settled  in  the  corporation  of  Colchester,  and  who  had  applied  to  those 
three  justices  for  licences  to  sell  ale. 

The  proceedings  were  tlius :  Seymour  and  these  three  justices  met  in 
order  to  grant  licences  to  sell  ale  ;  when  the  burgesses  applied  they  had 
their  licences  upon  the  common  and  ordinary  terms,  but  when  any  for- 
eigner came  for  a  licence,  the  constables  who  were  stationed  to  guard  the 
outward  door  suffered  none  but  the  foreigner  who  applied  for  a  licence 
to  enter  into  the  first  room,  where  Seymour  was  ;  and  the  general  ques- 
tion Seymour  put  to  the  foreigner  was,  Whether  he  was  willing  to  pay 
ten  shillings  for  his  licence?  If  he  refused  he  was  dismissed,  but  if  he 
ao-reed  to  pay  it  to  Seymour  his  sureties  were  called,  and  he  was  ad- 
mitted to  go  along  with  them  into  the  I'oom  to  the  three  justices,  where 
his  recognizance  was  taken  and  his  licence  granted.  These  informa- 
tions were  tried  by  three  special  juries  of  gentlemen  ;  the  facts  charged 
were  very  fully  proved  upon  the  trial ;  and  there  were  above  one 
hundred  licences  granted  at  the  rate  of  ten  shillings  apiece. 

When  Chappie,  Justice,  had  certified  as  above,  Serjeant  Price  and 
Mr.  Bootle  moved,  in  mitigation  of  the  fines  that  should  be  set  by  the 
Court,  upon  several  affidavits  to  shew  quo  animo  the  fact  was  done,  as 
that  such  fines  had  been  taken  for  twenty-five  years  past ;  that  this 
whole  procedure  was  by  the  consent  and  direction  of  all  the  other  ruling 
members  of  the  corporation  ;  and  that  the  money  was  applied  to  public 
uses,  as  for  repairing  bridges,  streets,  etc. 

The  Court  suffered  the  affidavits  to  be  read,  though  it  was  opposed 
by  the  counsel  on  the  other  side. 

The  Couut.  This  crime  appears  upon  the  informations,  and  t!ie 
affidavits  for  mitigation,  to  be  of  a  very  high  nature  ;  for  here  are  three 
justices,  who  are  intrusted  by  the  act  of  Parliament  of  the  5.  &  6.  Edw. 
6,  c.  25,  with  a  discretionary  power  to  grant  or  refuse  licences  to  the 
persons  who  apply  for  them,  for  each  of  which  the  statute  allows  one 
shilling.  It  appears  there  were  several  api)lications  made  for  licences, 
and  that  the  justices  granted  them  to  anybody  that  was  willing  to  pay 
ten  shillings,  without  any  regard  to  the  person,  whether  he  was  quali- 
fied within  the  intent  of  the  act  or  not.  There  was  indeed  a  distinction 
made  between  townsmen  and  foreigners,  the  latter  being  obliged  to  pay 
mucli  more  than  the  former ;  and  there  is  no  doubt  but  that  by  the  by- 
laws of  a  corporation,  in  a  great  many  instances,  foreigners  may  be 
obliged  to  pay  greater  fees  than  the  townsmen,  as  for  the  setting  up  of 
any  trade,  etc.,  but  selling  of  ale  is  not  a  trade,  or  the  subject  matter  of 
any  by-law.  Licencing  public  houses  is  a  trust  reposed  in  justices  of  the 
peace  by  the  legislature,  and  when  they  execute  it  in  this  extraordinary 
manner,  neither  the  custom  of  doing  it  for  twenty-five  years  before,  nor 
the  application  of  the  money  to  public  purposes,  nor  the  consent  of  the 


SECT,  II.]  Taylor's  case.  51 

other  ruling  members  of  the  borougli,  can  excuse  these  justices  from 
the  censures  of  this  Court. 

Therefore  the  three  justices  must  be  fined  one  hundred  pounds  each, 
and  Seymour,  who  appears  to  be  an  agent  or  instrument  to  the  justices, 
must  be  fined  one  liun(b-ed  and  twenty  pounds,  viz.,  the  sum  of  forty 
pounds  on  each  information. 

The  justices  and  Seymour  liad  in  court  all  the  fine  money,  except 
one  Imndred  pounds,  which  they  offered  to  pay. 

But  tlie  Court  said,  Let  them  be  gentlemen  of  ever  so  large  a  fortune, 
they  must  pay  the  whole  fine  in  court  or  be  committed,  and  checked  one 
of  the  clerks  in  court  for  proposing  to  undertake  for  the  payment  of  the 
one  hundred  pounds.  The  justices  then  paid  the  three  hundred  and 
twenty  pounds,  and  gave  their  note  for  the  remaining  one  hundred 
pounds,  which  was  accepted  by  the  Court  as  payment.^ 


TAYLOR'S   CASE. 
King's  Bench.     1676. 

[Reported  1   Veiitris,  293.] 

An  information  exhibited  against  him  in  the  crown  office,  for  utter- 
ing of  divers  blasphemous  expressions,  horrible  to  hear  ;  viz..  That 
Jesus  Christ  was  a  bastard,  a  whoremaster  ;  Religion  was  a  cheat ;  and 
that  he  neither  feared  God,  the  Devil,  or  man. 

Being  upon  his  trial,  he  acknowledged  the  speaking  of  the  words, 
except  the  word  bastard  ;  and  for  the  rest,  he  pretended  to  mean  them 
in  another  sense  than  they  ordinarily  bear;  viz.,  whoremaster,  i.  e., 
that  Christ  was  master  of  the  whore  of  Babylon,  and  such  kind  of 
evasions  for  the  rest.  But  all  the  words  being  proved  by  several  wit- 
nesses, he  was  found  guilty. 

And  Hale  said,  That  such  kind  of  wicked,  blasphemous  words  were 
not  only  an  offence  to  God  and  religion,  but  a  crime  against  the  laws, 
State  and  government,  and  therefore  punishable  in  this  court  (for  to 
say  religion  is  a  cheat,  is  to  dissolve  all  those  obligations  whereby  the 
civil  societies  are  preferred)  ;  and  that  Christianity  is  parcel  of  the  laws 
of  England,  and  therefore  to  reproach  the  Christian  religion  is  to  speak 
in  subversion  of  the  law. 

Wherefore  they  gave  judgment  upon  him  ;  viz.,  To  stand  in  the  pillory 
in  three  several  places,  and  to  pay  one  thousand  marks  fine,  and  to  find 
sureties  for  his  good  behavior  during  life.^ 

1  See  Rex  v.  Roberts,  Comb.  193. 

*  See  State  v.  Williams.  4  Ire.  (N.  C.)  400. 


52  ANONYMOUS.  [CHAP.  IL 

HUGH  MANNEY'S  CASE. 
Star  Chamber.     16. 

[Reported  12  Colce,  101.] 

In  an  information  in  the  P^xchequer  against  Hugh  Manney,  Esq., 
the  father,  and  Hugh  Manney,  the  son,  for  intrusion  and  cutting  of  a 
great  number  of  trees,  in  the  county  of  Merioneth,  the  defendants 
plead  not  guilty;  and  Rowland  ap  Eliza,  Esq.,  was  produced  as  a 
witness  for  the  King,  and  deposed  upon  his  oath  to  the  jurors,  that 
Hugh  the  father  and  the  son  joined  in  sale  of  the  said  trees,  and  com- 
manded the  vendees  to  cut  them  down,  upon  which  the  jurors  found 
for  the  King  with  great  damages  ;  and  judgment  upon  this  was  given, 
and  execution  had  of  a  great  part. 

And  Hugh  Manney,  the  father,  exhibited  a  bill  in  the  Star  Chamber, 
at  the  common  law,  against  Rowland  ap  Eliza,  and  did  assign  the  per- 
jury in  this,  that  the  said  Hugh,  the  father,  did  never  join  in  sale,  nor 
command  the  vendees  to  cut  the  trees ;  and  the  said  Rowland  ap 
Eliza  was  by  all  the  lords  in  the  Star  Chamber  convict  of  corrupt  and 
wilful  perjur}';  and  it  was  resolved  by  all,  that  it  was  by  the  common 
law  punishable  before  any  statute;  and  altliough  that  the  witness  de- 
pose for  the  King,  yet  he  shall  rather  be  punished  than  for  another ; 
for  the  King  is  the  head  and  fountain  of  justice  and  right ;  and  he,  who 
perjures  himself  for  the  King,  doth  more  offend  than  if  it  was  in  the 
case  of  a  subject. 


ANONYMOUS. 

Assizes.     1326. 
[Reported  Year  Book,  1  Ed.  iii.  16, />/.  7.] 

A  MAN  was  indicted  for  felony,  and  put  in  the  stocks  ;  another  comes 
and  enters  the  house  (without  breaking  the  house)  and  takes  him  out 
of  the  stocks  and  gets  him  away;  and  for  this  act  he  was  arrested  and 
brought  before  the  justices  and  arraigned,  etc.,  on  indictment,  and  put 
himself,  etc. ;   and  all  this  was  found  by  an  inquest. 

BouKCHiER,  C.  J.  C.  P.,  said  that  he  should  rest  in  the  grace  of  the 
King,  and  have  perpetual  prison  or  other  punishment  according  to  the 
King's  will.  But  he  should  never  be  hanged,  because  the  principal 
cause  was  not  tried,  nor  had  the  prisoner  been  attainted  ;  for  he  might 
j'et  be  acquitted.  But  it  is  otherwise  when  a  man  is  convicted  by  the 
inquest  on  which  he  has  put  himself  or  by  confession,  or  by  the  record, 
or  is  otherwise  adjudged  to  death;  he  who  rescues  such  a  man 
shall  be  hanged,  etc. 


SECT.  II.]  ANONYMOUS.  53 

ANONYMOUS. 

King's  Bench.     1686. 

[Reported  3  Mod.  97.] 

The  defendant  was  indicted  for  barratry.  The  evidence  against  Iiim 
was,  That  one  G.  was  arrested  at  the  suit  of  ( '.  in  an  action  of  four 
thousand  pounds,  and  was  brought  before  a  judge  to  give  bail  to  the 
action  ;  and  that  tlie  defendant,  who  was  a  barrister  at  law,  was  then 
present,  and  did  solicit  this  suit,  when  in  truth  at  the  same  time  C. 
was  indebted  to  G.  in  two  hundred  pounds,  and  that  he  did  not  owe 
the  said   C.  one  farthing. 

Herbert,  C.  J.,  was  first  of  opinion  that  this  might  be  maintenance, 
but  that  it  was  not  barratr}-,  unless  it  appeared  that  the  defendant 
did  know  that  C.  had  no  cause  of  action  after  it  was  brought.  If  a 
man  should  be  arrested  for  a  trifling  cause,  or  for  no  cause,  this  is  no 
barratry,  though  it  is  a  sign  of  a  very  ill  Christian,  it  being  against  the 
express  word  of  God.  But  a  man  may  arrest  another  thinking  that  he 
has  a  just  cause  so  to  do,  when  in  truth  he  has  none,  for  he  may  be  mis- 
taken, especially  where  there  have  been  great  dealings  between  the 
parties.  But  if  the  design  was  not  to  recover  his  own  right,  but  only 
to  ruin  and  oppress  his  neighbor,  that  is  barratry.  A  man  may  lay 
out  money  in  behalf  of  another  in  suits  of  law  to  recover  a  just  right, 
and  this  may  be  done  in  respect  of  the  poverty  of  the  party ;  but  if 
he  lend  money  to  promote  and  stir  up  suits,  then  he  is  a  barrator. 
Now  it  appearing  upon  the  evidence  that  the  defendant  did  entertain  C. 
in  his  house,  and  brought  several  actions  in  his  name  where  nothing 
was  due,  he  is  therefore  guilty  of  that  crime.  But  if  an  action  be  first 
brought,  and  then  prosecuted  by  another,  he  is  no  barrator,  though 
there  is  no  cause  for  action. 


ANONYMOUS 
King's  Bench.     1688. 

[Reported  Comberbach,  46.] 

A  MAN  was  indicted  for  words  spoken  of  a  justice  of  peace  [a  buflSe- 
headed  fellow],  and  an  exception  was  taken  that  the  words  were  not 
indictable. 

But  per  Curiam,  Because  it  appears  thej^  were  spoken  of  him  in  the 
execution  of  his  office,  the  indictment  is  good.  And  per  [Wright]  C. 
J.,  All  actions  for  slandering  a  justice  in  his  office,  may  be  turned  into 
indictments.^ 

1  See  Pocock's  Case,  7  Mod.  310 ;  Ex  parte,  The  Mayor  of  Great  Yarmouth, 
1  Cox,  C.  C.  122. 


54  REGINA  V.    STEPHENSON.  [CHAP.  II. 

REGINA   V.    STEPHENSON. 

Crown  Case  Reserved.     1884. 

[Reported  13  Q.  B.  D.  331.] 

Case  stated  by  Hawkins,  J.  The  defendants  were  convicted  upon 
an  indictment  cluirging  them  with  having  burnt  the  dead  body  of  an 
illegitimate  infant  child  (named  George  Stephenson)  to  which  the  de- 
fendant Elizabeth  Stephenson  had  recently  given  birth,  with  tlie  intent 
to  prevent  the  holding  of  an  inquest  upon  it.  Counsel  for  the 
defendants  objected  to  the  sufficiency  of  the  indictment.^ 

Grove,  J.  This  conviction  should  be  affirmed.  There  are  two 
points  raised  by  the  case  which  has  been  stated ;  first,  is  it  indictable  at 
common  law  to  prevent  the  holding  of  a  coroner's  inquisition?  and, 
secondly,  is  there  enough  before  us  to  shew  that  the  coroner  had 
jurisdiction  to  hold  the  inquest? 

No  case  that  has  been  referred  to  is  absolutel}'  in  point,  but  there  are 
man}'  cases  which  shew  that  interference  with  statutory'  duties  and  the 
preventing  of  their  performance  is  a  misdemeanor  in  general  at  the 
common  law.  It  is  so  in  cases  where  statutory  provisions  are,  as  here, 
for  the  public  benefit,  and  especially  where,  as  here,  the  matter  is  one 
concerning  life  and  death.  It  is  most  important  to  the  public  that  a 
coroner  who  on  reasonable  grounds  intends  to  liold  an  inquest  should 
not  be  prevented  from  so  doing.  The  consequences  would  otherwise  be 
most  formidable,  especially  in  the  case,  I  fear,  of  3'oung  children,  for 
anyone  might  prevent  the  holding  of  an  inquest  by  the  destruction  of  a 
dead  body  with  impunity,  unless  it  could  be  proved  that  the  death  had 
been  caused  by  violence.  The  onl}'  evidence  might  be  the  examination 
of  the  body  itself.  It  might  be  that  the  only  witness  of  the  death  was 
the  murderer  of  the  person  found  dead.  To  hold  it  no  offence  to  pre- 
vent the  administration  of  the  law  b}'  pi'eventing  an  inquest  being  held, 
unless  proof  could  be  given  of  the  cause  of  death,  and  that  it  was  a 
violent  cause,  would  set  at  nought  the  protection  which  there  is  at 
present  to  the  public.  The  inquest  is  itself  an  inquiry  into  the  cause 
of  death  and  the  present  indictment  is  framed  upon  this  view,  the  con- 
trary view  involves  this  proposition,  that  a  coroner  should  be  certain  of 
the  cause  of  death  before  he  ventures  to  hold  his  inquest  —  this  is  cer- 
tainly not  tlie  law.  It  is  certainly  not  what  the  statute  governing  this 
mutter  says.  A  coroner  acts  and  ought  to  act  upon  information,  not 
upon  conclusive  evidence.  He  inquires  in  cases  of  sudden  death  where 
such  inquiry  is  desirable.  Bracton  Lib.  iii.  (De  Corona)  ch.  v,  and  the 
Mirrour  (The  Mirrour  of  Justices,  by  Home,  p.  38),  shew  that  the  statute 
is  but  an  affirmation  or  confirmation  of  the  common  law.  In  the 
statute  there  is  nothing  about  murder,  the  words  are  "suddenly  dead" 

1  This  (short  statement  is  substituted  for  that  of  the  lieporter.  —  Ed. 


SECT.  II.]  REGINA    V.    STEPHENSON.  55 

and  the  statute  requires  an  examination  of  the  dead  body,  the  whole 
wording  of  the  statute  shews  that  it  is  the  bodies  that  are  to  be  ex- 
amined to  find  the  cause  of  death.  A  coroner's  inquir}'  would  be 
useless  if  the  coroner  previously  had  b}-  evidence  to  satisfy  himself  of 
the  cause  of  death.  In  the  present  case  it  appears  that  there  was  at 
the  least  a  reasonable  suspicion,  and  indeed  probably  more  than  a 
reasonable  suspicion.  The  police  informed  the  coroner,  the  informa- 
tion came  from  parties  whose  business  it  was  to  look  into  these  matters, 
probably  the  coroner  honestly  believed  the  information  thus  given  to 
him.  It  is  clear  to  my  mind  that  in  holding  an  inquest  the  coroner 
would  only  in  such  a  case  be  doing  his  duty,  and  in  this  duty  the 
defendants  obstruct  him  by  surreptitiously  taking  away  the  body  and 
burning  it.  Their  object  was  to  prevent  the  inquest ;  the  case  in  Mod. 
Rep.  (7  Mod.  Rep.  Case  15),  seems  to  me  in  point.  In  the  particular 
case  the  death  was  violent,  that  either  means,  appeared  to  have  been  a 
violent  one,  or  it  means,  was  discovered  to  have  been  a  violent  one 
when  the  inquest  was  held,  but  Lord  Holt  seems  to  indicate  that  the 
offence  was  the  burying  the  child  before  the  inquest  so  as  to  obstruct 
the  inquest.  If  it  is  a  crime  to  bury,  a  fortiori  it  is  one  to  burn  a  body, 
because  if  you  bury,  exhumation  is  possible,  but  if  you  burn,  the  body 
is  destroyed  and  examination  is  no  longer  possible.  However,  here  it 
is  enough  to  say  the  coroner  had  a  right  to  hold  the  inquest,  and  the 
prisoners  were  wrong  in  secretly  and  intentionally  burning  the  body  to 
obstruct  him  in  his  duty  of  holding  such  inquest. 

Stephex,  J.  I  am  of  the  same  opinion.  It  is  a  misdemeanor  to 
destroy  a  body  upon  which  an  inquisition  is  about  to  be  properly  held, 
with  intent  to  prevent  the  holding  of  that  inquest.  This  appears  from 
many  authorities  and  from  the  case  in  Mod.  Rep.  (7  Mod.  Rep.  Case  15). 
Is  it  true  that  it  is  a  misdemeanor  to  interfere  in  a  case  where  the 
coroner  is  of  opinion  that  an  inquest  must  be  held,  or  is  it  necessary 
that  the  facts  should  be  such  that  the  inquest  ought  to  be  held  ?  This 
matter  is  not  absolutely  covered  by  authority.  In  one  sense  we  do 
create  new  offences,  that  is  to  say,  that  as  a  Court  we  can  and  do  define 
the  law  from  time  to  time  and  apply  it  to  the  varying  circumstances 
which  arise.  In  Reg.  v.  Price,  12  Q.  B.  D.  247,  248,  I  said,  "  it  is  a 
misdemeanor  to  prevent  the  holding  of  an  inquest  which  ought  to  be 
held  by  disposing  of  the  body.  It  is  essential  to  this  offence  that  the 
inquest  which  it  is  proposed  to  hold  is  one  which  ought  to  be  held. 
The  coroner  has  not  absolute  right  to  hold  inquests  in  every  case  in 
which  he  chooses  to  do  so.  It  would  be  intolerable  if  he  had  power  to 
intrude  without  adequate  cause  upon  the  privacy  of  a  family  in  distress, 
and  to  interfere  with  their  arrangements  for  a  funeral.  Nothing  can 
justify  such  interference  except  a  reasonable  suspicion  that  there  may 
have  been  something  peculiar  in  the  death,  that  it  may  have  been  due 
to  other  causes  than  common  illness.  In  such  cases  the  coroner  not 
only  may,  but  ought  to  hold  an  inquest,  and  to  prevent  him  from  doing 
so  by  disposing  of  the  body  in  any  way  —  for  an  inquest  must  be  held 


56  REX    V.   TIBBITS.  [chap.  II. 

on  the  view  of  the  body  —  is  a  misdemeanor."  I  say  the  same  thing 
now,  and  I  concur  in  my  brother  Grove's  view,  indeed  any  other  view 
would  in  my  opinion  be  absurd.  If  a  person  destroys  a  dead  body  or 
removes  it  to  prevent  an  inquest  being  held  he  is  guilty  of  an  offence  if 
the  inquest  intended  to  be  held  was  one  that  might  lawfully  be  held. 
As  has  been  said  in  the  course  of  the  argument,  a  man  who  obstructs 
an  inquest  in  this  way  takes  his  chance  of  the  inquest  being  one  that  it 
was  right  to  hold.  It  is  an  obstruction  of  an  officer  of  justice,  it 
prevents  the  doing  of  that  which  the  statute  authorizes  him  to  do.^ 


REX   V.    TIBBITS. 

Court  for  Crown  Cases  Reserved.     1901. 
[Reported  1902,  1  K.  B.  77.] 

Lord  Alverston,  C.  J.^  This  was  a  case  reserved  by  Kenned}',  J., 
at  the  last  summer  assizes  at  Bristol.  Indictments  were  preferred 
against  two  defendants,  Charles  John  Tibbits  and  Charles  Windust. 
The  indictments  contained  sixteen  counts,  upon  each  of  which  the  de- 
fendants were  found  guilty.  The  charges  contained  in  the  indictment 
related  to  the  pubhcation  of  certain  matters  in  a  newspaper  called  the 
Weekly  Dispatch,  between  January  13,  1901,  and  March  4,  1901 
(inclusive),  and  particularly  to  the  issues  of  that  newspaper  dated 
respectively  January  13  and  February  3,  1901.  Prior  to  the  publica- 
tion of  the  first  article,  two  persons,  named  AUport  and  Chappell,  had 
been  charged  before  the  magistrate  with  offences  under  the  Prevention 
of  Cruelty  to  Children  Act,  1894.  Further  charges  of  attempting  to 
murder,  and  of  conspiracy  to  murder  a  child  named  Arthur  Bertie 
Allport,  and  of  a  conspiracy  to  commit  the  offence  against  s.  1  of  the 
Prevention  of  Cruelty  to  Children  Act,  1894,  were  preferred  against 
them.  On  February  8  Allport  and  Chappell  were  committed  to  take 
their  trial  at  the  next  Bristol  Assizes,  which  had  been  fixed  to  com- 
mence on  February  20.  Their  trial  on  the  indictment  for  the  attempt 
to  murder  commenced  before  Day,  J.,  on  March  1,  and  terminated  on 
March  5.  They  were  found  guilty,  and  sentenced,  Allport  to  fifteen 
years'  penal  servitude  and  Chappel  to  five  years'  penal  servitude.  The 
ipublications  in  the  Weekly  Dispatch,  which  formed  the  subject  of  the 
present  indictment  against  Tibbits  and  Windust,  were  statements  relat- 
ing to  the  case  of  Allport  and  Chappell,  contained  in  the  issues  of  the 
Weekly  Dispatch  during  the  hearing  of  the  case  against  Allport  and 
Chappell  before  the  magistrate,  and  before  and  during  the  trial  of  these 
persons  at  the  assizes.     It  is  unnecessary  to  refer  in  detail  to  any  of 

1  Concurring  opinions  of  Williams,  Mathew,  and  Hawkins,  J.J.,  are  omitted.  —  Eu. 

2  The  opinion  only  is  given  :  it  sufficiently  states  the  case.     Part  of  the  opinion  is 
omitted.  — Ed. 


SECT.  II.]  ,  REX    V.   TIBBITS.  57 

the  incriminated  articles,  of  which  those  of  Jannar}'  13  and  February 
3  were  the  most  important.  It  is  sufficient  to  say  that  the  publication 
went  far  beyond  an}'  fair  and  bona  fide  report  of  the  proceedings  before 
the  magistrate.  They  contained,  coached  in  a  florid  and  sensational 
form,  a  number  of  statements  highly  detrimental  to  Allport  and  Chap- 
pell.  Man}'  of  these  statements  related  to  matters  as  to  which  evidence 
could  not  have  been  admissible  against  them  in  an}-  event,  and  pur- 
ported to  be  the  result  of  investigations  made  b}'  the  "Special  Crime 
Investigator "  of  the  newspaper.  Under  these  circumstances  it  was 
contended  on  behalf  of  the  prosecution  that  there  was  evidence  upon 
which  the  jury  might  properly  convict  both  the  defendants  on  all  the 
counts  of  the  indictment.  Upon  the  argument  before  us  we  had  no 
doubt  upon  the  main  questions  which  had  been  discussed,  but,  having 
regard  to  the  nature  of  the  proceedings  and  the  importance  of  the  case, 
we  thought  it  desirable  that  we  should  endeavour  to  lay  down  as  clearly 
as  possible  the  law  applicable  to  such  a  case.  Points  were  raised  and 
argued  on  behalf  of  the  defendant  Windust  as  distinguished  from  the 
defendant  Tibbits.  It  will  be  convenient  to  postpone  the  discussion  of 
those  points  until  we  have  dealt  with  the  main  questions  of  law  raised 
on  behalf  of  both  prisoners.  It  was  not  attempted  to  be  argued  by 
Mr.  Foote,  who  appeared  as  counsel  for  both  defendants,  that  the  pub- 
lication of  such  articles  was  lawful,  and  that  the  persons  publishing 
such  articles  could  not  be  punished.  On  the  contrary,  he  contended 
that  the  publication  of  such  articles  was  a  contempt  of  Court,  and  could 
onh'  properly  be  punished  as  such  eitlier  b}'  summary  proceedings  or 
indictment  for  contempt.  He  further  urged  that  there  was  no  evidence 
of  an}'  intention  on  the  part  of  either  of  the  defendants  to  pervert  or 
interfere  with  the  course  of  justice,  and  that  any  inference  which  might 
otherwise  be  drawn  from  the  contents  of  the  articles,  that  they  were 
calculated  to  pervert  or  interfere  with  the  course  of  justice,  was  nega- 
tived by  the  fact  that  the  defendants  Allport  and  Chappell  had  been 
subsequently  convicted.  That  the  publication  of  such  articles  consti- 
tuted a  contempt  of  Court  and  could  be  punished  as  such,  is  well 
established.  One  of  the  sorts  of  contempt  enumerated  by  Hardwicke, 
L.  C,  in  the  year  1742,  2  Atk.  471,  is  prejudicing  mankind  against  per- 
sons before  the  case  was  heard,  and  he  adds  these  important  words : 
"There  cannot  be  anything  of  greater  consequence  than  to  keep  the 
realms  of  justice  clear  and  pure  that  parties  may  proceed  with  safety 
both  to  themselves  and  their  characters."  The  case  of  Rex  r.  JollifTe, 
4  T.  R.  285,  shews  that  a  criminal  information  lay  for  distributing  in  the 
assize  town,  before  the  trial  at  Nisi  Prius,  handbills  reflecting  on  the  con- 
duct of  a  prosecutor,  and,  in  the  course  of  his  judgment  in  that  case,  Lord 
Kenyon  made  the  following  very  relevant  observations,  4  T.  R.  at  p.  298  : 
"  Now  it  is  impossible  for  any  man  to  doubt  whether  or  not  the  publica- 
tion of  these  papers  be  an  offence.  Even  the  charge  on  the  prosecutor 
would  of  itself  warrant  us  to  grant  the  information  ;  but  that  is  a  minor 
offence,  when  compared  with  that  of  publishing  the  papers  in  question 


58  REX    V.    TIBBITS.  .  [chap.  IL 

during  the  pendency  of  the  cause  at  the  assizes,  and  in  the  hour  of  trial. 
It  is  the  pride  of  the  constitution  of  this  countv}-  that  all  causes  should 
be  decided  by  jurors,  who  are  chosen  in  a  manner  which  excludes  all 
possibilit}-  of  bias,  and  who  are  chosen  by  ballot,  in  order  to  prevent 
any  possibility  of  their  being  tampered  with.  But,  if  an  individual  can 
break  down  anj-  of  those  safeguards  which  the  constitution  has  so 
wisely  and  so  cautiously  erected,  by  poisoning  the  minds  of  the  jury  at 
a  time  when  the}'  are  called  upon  to  decide,  he  will  stab  the  adminis- 
tration of  justice  in  its  most  vital  parts.  And,  therefore,  I  cannot  for- 
bear saj'ing,  that,  if  the  publication  be  brought  home  to  the  defendant, 
he  has  been  guilt}'  of  a  crime  of  the  greatest  enormity."  Again,  in  the 
case  of  Rex  v.  Fisher,  2  Cam}?.  563,  the  printer,  publisher,  and  editor, 
were  convicted  for  publishing  a  scandalous,  defamatory',  and  malicious 
libel,  intending  to  injure  one  Richard  Stephenson,  charged  with  assault, 
and  deprive  him  of  the  benefit  of  an  impartial  trial,  "  and  to  injure  and 
prejudice  him  in  the  minds  of  the  liege  subjects  of  our  lord  the  King 
and  to  cause  it  to  be  believed  that  he  was  guilty  of  the  said  assault  and 
thereby  to  prevent  the  due  administration  of  justice  and  to  deprive  the 
said  Richard  Stephenson  of  the  benefit  of  an  impartial  trial."  It  was 
urged  on  behalf  of  the  defendants  that  this  was  an  indictment  for  libel, 
and  that,  therefore,  it  was  no  authority  for  the  indictment  in  the  present 
case.  But,  if  the  judgment  of  Lord  Ellenborough  is  examined,  it  will 
be  noted  that  the  main  ground  of  the  judgment  is  that  the  publication 
would  tend  to  pervert  the  public  mind  and  disturb  the  course  of  justice 
and  therefore  be  illegal,  and  we  cannot  doubt  that,  if  the  attempt  so  to 
do  be  made,  or  means  taken,  the  natural  effect  of  which  would  be  to 
create  a  wide-spread  prejudice  against  persons  about  to  take  their  trial, 
an  offence  has  been  committed,  whatever  the  means  adopted,  provided 
there  be  not  some  legal  justification  for  the  course  pursued.  The  case 
of  Rex  V.  Williams,  2  L.  J.  (K.B.)  (O.S.)  30,  is  another  distinct  autho- 
rity for  tlie  same  view,  in  which  it  was  laid  down  that  any  attempt 
whatever  to  publicly  prejudge  a  criminal  case,  whether  b}' a  detail  of  the 
evidence  or  by  a  comment,  or  by  a  theatrical  e:''^'"^'*^>'^n  is  an  offence 
against  public  justice  and  a  serious  misdemeano  -^'^^.J  fo.,iublication  of 
pioceedings  publicdy  held  in  a  Court  of  Justice, '^^'"i"..rrind  accurate,  has 
now  the  protection  of  the  Law  of  Libel  Amendment  Act,  1888  (51  ife  52 
Vict.  c.  64),  s.  8.  The  law  as  laid  down  in  the  older  cases  to  which 
we  have  referred  was  summarised  bj'  Blackburn,  J.,  in  Skipworth's  Case, 
L.  R.  9  Q.  B.  230,  at  p.  232,  and  with  reference  to  the  objection  that 
the  more  proper  proceeding  should  be  by  proceedings  for  contempt  of 
Court,  we  would  refer  to  the  judgment  of  the  Court  in  Reg.  v.  Gray, 
[1900]  2  Q.  B,  36,  from  which  it  clearly  appears  that  in  many  cases  it 
is  preferable  to  proceed  by  information  or  indictment  rather  than  by 
motion  for  contempt.  We  have  no  doubt  whatever  that  the  publication 
of  the  articles  in  this  case,  at  the  time  when,  and  under  the  circum- 
stances in  which  they  were  published,  constitutes  a  criminal  offence  by 
whomsoever  they  were  published.     We  think  that  the  facts,  which  bring 


SECT.  11.]  REX   V.   TIDBITS.  59 

the  incriminated  articles  within  the  category  of  misdemeanour,  abun- 
dantly appear  upon  the  face  of  each  count,  and  that,  under  those  circum- 
stances, it  is  perfectly  immaterial  whether  the  articles  he  described  and 
charged  as  libels  or  contempts  or  not.  AVith  reference  to  the  argu- 
ment, which  was  strongly  urged,  that  there  was  no  evidence  of  an}'' 
intention  to  pervert  the  course  of  justice,  we  are  clearly  of  opinion,  for 
the  reasons  given  in  the  authorities  to  which  we  have  referred,  that  this 
is  one  of  the  cases  in  which  the  intent  may  properly  be  inferred  from 
the  articles  themselves  and  the  circumstances  under  which  they  were 
published.  It  would,  indeed,  be  far-fetched  to  infer  that  the  articles 
would  in  fact  have  any  effect  upon  the  mind  of  either  magistrate  or 
judge,  but  the  essence  of  the  offence  is  conduct  calculated  to  produce, 
so  to  speak,  an  atmosphere  of  prejudice  in  the  midst  of  which  tlie  pro- 
ceedings must  go  on.  Publications  of  that  character  have  been  pun- 
ished over  and  over  again  as  contempts  of  Court,  where  the  legal 
proceedings  pending  did  not  involve  trial  by  jury,  and  where  no  one 
would  imagine  that  the  mind  of  the  magistrates  or  judges  charged  with 
the  case  would  or  could  be  induced  thereby  to  swerve  from  the  straight 
course.  The  offence  is  much  worse  where  trial  by  jury  is  about  to  take 
place,  but  it  certainly  is  not  confined  to  such  cases.  We  further  think 
that,  if  the  articles  are  in  the  opinion  of  the  jurj-  calculated  to  interfere 
with  the  course  of  justice  or  pervert  the  minds  of  the  magistrate  or  of 
the  jurors,  the  persons  publishing  are  criminally  responsible  :  see  Reg. 
V  Grant,  7  St.  Tr.  (N.S.)  507.  We  are  also  of  opinion  that  the  fact 
that  Allport  and  Chappell,  the  persons  referred  to,  were  subsequently 
convicted  can  have  no  weight  in  the  decision  of  the  question  now  before 
us.  To  give  effect  to  such  a  consideration  would  involve  the  conse- 
quence that  the  fact  of  a  conviction,  though  resulting,  either  wholly  or 
in  part,  from  the  influence  upon  the  minds  of  the  jurors  at  the  trial  of 
such  articles  as  these,  justifies  their  publication.  This  is  an  argument 
which  we  need  scarcel}-  sa}'  reduces  the  position  almost  to  an  absurditv, 
and,  indeed,  its  chief  foundation  would  appear  to  be  a  confusion 
between  the  course  of  justice  and  the  result  arrived  at.  A  person 
accused  of  crime  in  this  country  can  properl}-  be  convicted  in  a  Court 
of  Justice  only  upon  evidence  which  is  legally  admissible  and  whicli  is 
adduced  at  his  trial  in  legal  form  and  shape.  Though  the  accused  be 
really  guilty  of  the  offence  charged  against  him,  the  due  course  of  law 
and  justice  is  nevertheless  perverted  and  obstructed  if  those  who  have 
to  try  him  are  induced  to  approach  the  question  of  his  guilt  or  inno- 
cence with  minds  into  which  prejudice  has  been  instilled  by  published 
assertions  of  his  guilt  or  imputations  against  his  life  and  character  to 
which  the  laws  of  the  land  refuse  admissibilit}'  as  evidence. 

We  have  now  only  to  consider  the  special  points  which  were  taken 
on  behalf  of  the  defendant  Windust.  .  .  . 

Conviction  Affiii'Tned, 


60  STATE   V.    HOLT.  "  [CHAP.  IL 

STATE  V.   HOLT. 
Supreme  Judicial  Court  of  Maine.      1892. 

[Reported  84  Maine,  509.] 

Walton,  J.  A  wilful  and  corrupt  attempt  to  prevent  the  attend- 
ance of  a  witness  before  any  lawful  tribunal  organized  for  the  adminis- 
tration of  justice  is  an  indictable  otfence  at  common  law.  The  essence 
of  the  offence  consists  in  a  wilful  and  corrupt  attempt  to  interfere  with 
and  obstruct  the  administration  of  justice.  And  when  the  act  and  the 
motive  are  first  directly  averred,  and  then  clearlj'  proved,  punishment 
should  follow. 

In  this  case  the  indictment  alleges  that  the  defendant,  "  well  know- 
ing that  one  Fred  N.  Treat  had  been  summoned  in  due  form  of  law  to 
appear  before  the  Supreme  Judicial  Court  holden  at  Belfast  within  and 
for  the  county  of  Waldo,  on  the  thirtieth  day  of  April  aforesaid,  then 
and  there  to  give  evidence  in  said  court  in  behalf  of  the  Slate,  and 
contriving  and  intending  to  obstruct  the  due  course  of  justice,  did  then 
and  there  unlawfully  and  corruptly  prevent,  and  attempt  to  prevent 
the  said  Treat  from  appearing  at  said  court  to  give  evidence  as  afore- 
said by  then  and  there  soliciting,  enticing,  and  persuading  the  said 
Treat  to  become  intoxicated,  and  b}-  then  and  there  removing  and 
abducting  him,  the  said  Treat,  whereby  the  said  Treat  did  not  appear 
at  said  court  and  give  evidence,"  etc. 

It  is  objected  that  this  indictment  is  not  sufficient,  because  it  does 
not  aver  that  the  witness  had  been  summoned,  or  that  a  summons  had 
been  issued,  or  that  there  was  a  cause  pending  requiring  the  attendance 
of  the  witness. 

We  do  not  think  that  either  of  these  objections  can  be  sustained. 

In  State  v.  Keyes,  8  Vt.  57  (30  Am.  Dec.  450),  in  a  well-considered 
opinion  by  Mr.  Justice  Redfield,  the  court  held  that  it  had  always 
been  an  indictable  offence  at  common  law  to  attempt  to  prevent  the 
attendance  of  a  witness  before  a  court  of  justice,  although  no  subpoena 
for  the  witness  had  been  served  or  issued.  It  will  not  do  for  a 
moment,  said  the  court,  to  admit  that  witnesses  may  be  secreted  or 
bribed,  or  intimidated,  and  the  guilt}'  parties  not  be  liable  unless  a 
subpoena  has  been  served  upon  the  witnesses.  The  doing  of  any  act, 
continued  the  court,  tending  to  obstruct  the  due  course  of  public  justice, 
has  always  been  held  to  be  an  indictable  offence  at  common  law  ;  and 
bribing,  intimidating,  and  persuading  witnesses,  to  prevent  them  from 
testifying,  or  to  prevent  them  from  attending  court,  has  been  among 
the  most  common  and  the  most  corrupt  of  this  class  of  offences ;  and 
whether  the  witness  has  been  served  with  a  subpoena,  or  is  about  to  be 
served  with  one,  or  is  about  to  attend  in  obedience  to  a  voluntary 
promise,  is  not  material ;  for  any  attempt,  in  either  case,  to  prevent  his 


SECT.  II.]  STATE    V.    CARVER.  61 

attendance,  is  equally  corrupt,  equally  criminal,  and  equally  deserving 
of  punisliment. 

In  Com.  V.  Reynolds,  14  Gray,  87,  the  court  lield  it  to  be  an  in- 
dictable offence  at  common  law  to  dissuade,  hinder,  or  prevent  a  witness 
from  attending  before  a  court  of  justice  ;  and  that  an  indictment  for 
such  an  offence  need  not  allege  in  whose  behalf  the  witness  had  been 
summoned,  nor  that  his  testimony  was  material.  The  offence,  said 
Mr.  Justice  Metcalf,  is  the  obstruction  of  the  due  course  of  justice  ; 
and  the  obstruction  of  the  due  course  of  justice  means  not  only  the 
due  conviction  and  punishment,  or  the  due  acquittal  and  discharge, 
of  an  accused  party,  as  justice  may  require  ;  but  it  also  means  the  due 
course  of  the  proceedings  in  the  administration  of  justice;  that,  by 
obstructing  these  proceedings,  public  justice  is  obstructed. 

Intentionally  and  designedly  to  get  a  witness  drunk,  for  the  express 
purpose  of  preventing  his  attendance  before  the  grand  jury,  or  in  open 
court,  is  such  an  interference  with  the  proceedings  in  the  administration 
of  justice  as  will  constitute  an  indictable  offence,  and  one  for  which  the 
guilty  party  ought  to  be  promptly  and  severely  punished.  And  it  is 
important  that  it  should  be  understood  that  the  suppression  of  evidence 
by  such,  or  by  any  similarly  wicked  and  corrupt  means,  cannot  be 
practiced  with  impunity. 

Exceptions  overruled.     Indictment  adjudged  sufficient. 


STATE  V.  CARVER. 

Supreme  Court  of  New  Hampshire.     1898. 

[Reported  69  N.  H.  216.] 

Indictment  charging  that  one  Fernald  had  sold  one  quart  of  spirituous 
liquor  contrary  to  the  statute,  and  that  the  defendant  corruptly  and 
without  authority  made  composition  with  Fernald  and  took  from  him 
thirty  dollars  for  forbearing  to  prosecute  the  supposed  offence.  The 
defendant  moved  to  quash  the  indictment.  He  also  excepted  to  a 
ruling  of  the  court  at  the  trial,  which  is  discussed  in  the  opinion.^ 

Blodgett,  J.  Whatever  diversity  of  opinion  there  may  justly  be  as 
to  the  policy  of  the  liquor  laws  of  this  state,  it  cannot  be  doubted  that 
their  violation  is  a  grave  misdemeanor  against  public  justice,  nor  that 
its  compromise  with  the  offender  by  a  private  individual  is  both 
pernicious  and  illegal. 

"  Misdemeanors  are  either  mala  hi  se,  or  penal  at  common  law,  and 
such  as  are  mala  prohibita.,  or  penal  by  statute.  Those  m,ala  in  se 
are  such  as  mischievously  affect  the  person  or  property  of  another,  or 
outrage  decency,  disturb  the  peace,  injure  public  morals,  or  are  breaches 
of  public  duty."     4  Am.  &  Eng.  Enc.  Law  654. 

There  being  in  this  state  no  statute  prohibiting  the  composition  of 

1  This  short  statemeut  is  substituted  for  that  of  the  Reporter. — Ed. 


62  STATE   V.    CARVEK.  [CHAP.    II. 

misdemeanors,  and  the  bod}'  of  the  common  law  and  the  English  stat- 
utes in  amendment  of  it,  so  far  as  they  were  applicable  to  our  institutions 
and  the  circumstances  of  the  country,  having  been  in  force  here  upon 
the  organization  of  the  provincial  government  and  continued  in  force 
by  the  constitution,  so  far  as  they  are  not  repugnant  to  that  instrument, 
until  altered  or  repealed  by  the  legislature  (State  v.  Rollins,  8  N.  H. 
550;  State  v.  Albee,  61  N.  H.  427),  the  first  inquiry  is  whether  such 
composition  was  an  indictable  offence  at  common  law. 

While  decisions  upon  this  precise  point  are  lacking,  the  langirage  of 
the  books  is  general  that  the  taking  of  money  or  other  reward  to  sup- 
press a  criminal  prosecution,  or  the  evidence  necessary  to  support  it, 
was  an  indictable  offence  at  common  law,  and  although  the  English 
cases  ma}'  not  all  be  reconcilable  with  this  view,  it  would  seem  that 
"when  the  offence  compounded  was  one  against  public  justice  and  dan- 
gerous to  society  it  was  indictable,  while  those  having  largely  the 
nature  of  private  injuries,  or  of  ver}'  low  grade,  were  not  indictable. 
See  Johnson  v.  Ogilby,  3  P.  Wms.  277;  Fallowes  v.  Taylor,  7  T,  R. 
475  ;  Collins  v.  Blantern,  2  Wils.  341,  348,  349;  Rex  v.  Stone,  4  C.  & 
P.  379  ;  Keir  v.  Leeman,  6  Q.  B.  308,  316-322,  —  S.  C,  on  error. 
9  Q.  B.  371,  395  ;  Rex  v.  Crisp,  1  B.  &  Aid.  282;  Edgcombe  v.  Rodd, 
5  East,  294,  303  ;  Rex  v.  Southerton,  6  East,  126  ;  Beeley  v.  Wingfield, 
11  East,  46.  48;  Baker  v.  Townsend,  7  Taun.  422,  426;  Bushel  v. 
Barrett,  Ry.  &  M.  434  ;  Rex  v.  Lawley,  2  Stra.  904 ;  Steph.  C.  R.  L.  67  ; 
3  Wat.  Arch.  Crim.  Pr.  &  PI.  623-10,  623-11 ;  1  Russ.  Cr.  136  ;  1  Ch. 
Cr.  L.  (3d  Am.  ed.)  4  ;  1  Bish.  Cr.  L.  (7th  ed.),  ss.  710,  711;  Best.  Cr. 
L.  s.  10  6  ;  4  Wend.  Bl.  Com.  136,  and  note  18. 

In  this  restricted  sense  we  are  of  opinion  that  the  taking  of  money, 
or  other  reward,  or  promise  of  reward,  to  forbear  or  stifle  a  crim- 
inal prosecution  for  a  misdemeanor,  was  an  indictable  offence  by  the 
common  law,  the  same  as  it  unquestionably  was  for  a  felony  (Part- 
ridge V.  Hood,  129  Mass.  403,  405,  406,  407),  and  that  it  has  always 
been  so  understood  and  received  here,  as  well  as  in  other  jurisdictions. 
Plumer  v.  Smith,  5  N.  H.  553,  554  ;  Hinds  v.  Chamberlin,  6  N.  U. 
229  ;  Severance  v.  Kimball,  8  N.  H.  386,  387  ;  Hinesburg  v.  Sumner, 
9  Vt.  23,  26  ;  Badger  v.  Williams,  1  D.  Chip.  137,  138,  139  ;  State  v. 
Keyes,  8  Vt.  57,  65-67;  State  v.  Carpenter,  20  Vt.  9  ;  Commonwealth 
V.  Pease,  16  Mass.  91  ;  Jones  v.  Rice,  18  Pick.  440  ;  Partridge  v.  Hood, 
supra  ;  State  v.  Dowd,  7  Conn.  384,  386. 

Certainly,  there  is  no  ground  to  contend  that  the  offence  is  any 
less  pernicious  and  reprehensible  under  our  form  of  government  than 
under  that  of  the  mother  country,  or  that,  as  a  part  of  the  body  of 
the  common  law,  it  was  inapplicable  to  our  institutions  and  circum- 
stances at  the  time  of  the  organization  of  our  provincial  government, 
or  in  any  manner  repugnant  to  the  constitution  or  to  our  present 
institutions  and  circumstances.  Indeed,  the  absence  of  any  statute 
Dpon  the  subject  of  the  composition  of  misdemeanors  sufHcientl}'  shows 
the  general  understanding  in  this  state,  for  it  cannot  reasonably  be 


SECT.  II.]  STATK    V.    CARVER.  63 

supposed  that  so  infamous  an  offence  would  have  been  permitted  to  go 
unpunished  for  want  of  statutory  enactment,  unless  it  has  been 
understood  generally  that  under  our  common  law  none  was  necessary. 

But  not  only  did  die  defendant,  in  consideration  of  a  reward,  com- 
pound a  public  misdemeanor,  and  suppress  and  destroy  the  material 
evidence  necessary  to  support  it,  he  also  defrauded  the  revenue  by 
de[)riving  the  public  of  that  portion  of. the  pecuniary  penalty  to  which 
the_y  are  entitled  for  a  violation  of  the  liquor  laws ;  and  this  of  itself 
is  a  sufflcient  ground  on  which  to  sustain  an  indictment  at  common 
law.     Rex  v.  Southerton,  6  P^ast,  126;  1  Russ.  Cr.  134. 

In  view  of  these  conclusions,  it  is  unnecessary  to  examine  the  ques- 
tion argued  by  counsel  as  to  whether  or  not  the  case  falls  within  the 
statute  of  18  Eliz.,  c.  5  (made  perpetual  by  27  Eliz.,  c.  10,  and  amended 
as  to  punishment  b}'  56  Geo.  Ill,  c.  138),  by  which  it  was  enacted  that 
if  any  person  "  by  colour  or  pretence  of  process,  or  without  process 
upon  colour  or  pretence  of  any  matter  of  offence  against  any  penal  law, 
make  any  composition,  or  take  any  mone}',  reward,  or  promise  of  re- 
ward," without  the  order  or  consent  of  some  court,  "  he  shall  stand 
two  hours  in  the  [)ill()iy,  be  forever  disabled  to  sue  on  any  popular  or 
penal  statute,  and  shall  forfeit  ten  pounds." 

The  motion  to  quash  the  indictment  because  it  describes  the  offence 
for  which  composition  was  made  as  a  "■  supposed  offence,"  was  prop- 
erly denied.  "  Tlie  bargain  and  acceptance  of  the  reward  makes  the 
crime  "  (State  v.  Duhammel,  2  Harr.  532,  533)  ;  and  in  such  a  case, 
"the  party  may  be  convicted  though  no  offence  liable  to  a  penalty  has 
been  committed  by  the  person  from  whom  the  reward  is  taken." 
Reg.  V.  Best,  9  C.  &  P.  368,-38  Eng.  C.  L.  220;  Rex  v.  Gotley, 
Russ  &  Ry.  84  ;  People  v.  Buckland,  13  Wend.  502;  1  Russ.  Cr.  133, 
134  ;  3  Arch.  Crim.  Pr.  &  PI.  623-11. 

The  ruling  that  "if  the  defendant  knew  what  he  was  doing  and 
did  what  he  intended  to  do,  it  was  immaterial  what  his  opinion  was 
as  to  the  legal  effect  of  what  he  was  doing,  and  it  would  be  no 
defence  that  be  did  not  know  he  was  violating  the  law,"  was  mani- 
festly correct.  "  A  man's  moi-al  perceptions  may  be  so  perverted  as  to 
imagine  an  act  to  be  right  and  legal  which  the  law  justly  pronounces 
fraudulent  and  corrupt ;  but  he  is  not  therefore  to  escape  from  the 
consequences  of  it."  Bump.  Fr.  Conv.  (3d  ed.)  25.  "  Ignorance  of  a 
fact  may  sometimes  be  taken  as  evidence  of  a  want  ot  criminal  intent, 
but  not  ignorance  of  the  law  "  (Reynolds  v.  United  States,  98  U.  S. 
145)  ;  and  "in  no  case  can  one  enter  a  court  of  justice  to  which  he 
has  been  summoned  in  either  a  civil  or  criminal  proceeding,  with  the 
sole  and  naked  defence  that  when  he  did  the  act  complained  of,  he  did 
not  know  of  the  existence  of  the  law  which  he  violated."  1  Bish.  Cr. 
L.  (7th  ed.),  s.  294. 

It  is  elementary,  as  well  as  indispensable  to  the  orderly  administra- 
tion of  justice,  that  every  man  is  presumed  to  know  the  laws  of  the 
country   in  which   he  dwells,    and  also  to  intend   the   necessary  and 


64  KEX   V.    BLAKE.  [CHAP.  II. 

legitimate  consequences  of  what  lie  knowingly  does.  If  there  are 
cases  in  which  the  application  of  these  presumptions  might  operate 
liarshl}-,  the  admitted  facts  ampl}'  demonstrate  that  this  case  is  not 
such  an  one.  Exceptions  overruled. 


REX   V.  BLAKE. 
King's  Bench.     1765. 

[Reported  3  Burrow,  1731.] 

Mr.  Dunning  showed  cause  wh}-  an  indictment  should  not  be 
quashed. 

He  called  it  an  indictment  for  a  forcible  entr}' ;  and  argued  "  that  an 
indictment  for  a  forcible  entry  may  be  maintained  at  common  law.'' 
He  cited  a  case  in  Trin.  1753,  26,  27,  G.  2.  B.  R.  Rex  v.  Brown  and 
Others  ;  and  Rex  v.  Bathurst,  Tr.  1755,  28  G.  2.  S.  P. 

But,  N.  B.  This  indictment  at  present  in  question  was  on\y  for 
(yiet  armis)  breaking  and  entering  a  close  Cnot  a  dwelling-house)  and 
unlawfully  and  unjustly  expelling  the  prosecutors,  and  keeping  them 
out  of  possession. 

Mr.  Popham^  on  behalf  of  the  defendants,  objected  "  that  this  was 
an  indictment  for  a  mere  trespass,  for  a  civil  injury  ;  not  a  public,  but 
a  private  one  ;  a  mere  entry  into  his  close,  and  keeping  him  out  of  it." 
The  "  force  and  arms  "  is  applied  only  to  the  entry,  not  to  the  expel- 
ling or  keeping  out  of  possession  ;  they  are  only  charged  to  be  unlaw- 
fully and  unjustly.  This  is  no  other  force  than  the  law  implies.  No 
actual  breach  of  the  peace  is  stated  ;  or  any  riot ;  or  unlawful  assembly. 
And  he  cited  the  cases  of  Rex  v.  Gask,  Rex  v.  Hide,  and  Rex  v.  Hide 
and  Another  (which,  together  with  a  note  upon  them,  may  be  seen  in 
the  text  and  margin  of  page  1768). 

Rex  V.  Bathurst  is  the  only  case  where  the  objection  has  not  been 
held  fatal ;  and  that  was  because  it  was  a  forcible  entry  into  a  dwelling- 
house. 

Rex  v.  Jopson  et  al.  Tr.  24,  25  G.  2  B.  R.  was  an  unlawful  assembly 
of  a  great  number  of  people.     (V.  ante  3  Burr.  1702,  in  the  margin.) 

Mr.  Justice  Wilmot.  No  doubt,  ^an  indictment  will  lie  at  common 
law  for  a  forcible  entry,  though  they  are  generally  brought  on  the  acts 
of  parliament.  On  the  acts  of  parliament,  it  is  necessar}'  to  state  the 
nature  of  the  estate,  because  there  must  be  restitution  ;  but  they  may 
be  brought  at  common  law. 

Here  the  words  "  force  and  arms"  are  not  applied  to  the  whole  ;  but 
if  they  were  applied  to  the  whole,  yet  it  ought  to  be  such  an  actual 
force  as  implies  a  breach  of  the  peace,  and  makes  an  indictable  offence. 
And  this  I  take  to  be  the  rule,  "  That  it  ought  to  appear  upon  the  face 
of  the  indictment  to  be  an  indictnble  offence." 

Here  indeed  are  sixteen  defendants.  But  the  number  of  the  defend- 
ants makes  no  difference,  in  itself;  no  riot,  or  unlawful  assembly,  or 


SECT.  II.]  COMMONWEALTH    V.    GIBNEY.  65 

anything  of  that  kind  is  charged.  It  ought  to  amount  to  an  actual 
breach  of  the  peace  indictable,  in  order  to  support  an  indictment.  For, 
otherwise,  it  is  onl}-  a  matter  of  civil  complaint.  And  this  ought  to 
appear  upon  the  face  of  the  indictment. 

Mr.  Justice  Yates  concurred.  Here  is  no  force  or  violence  shown 
upon  the  face  of  the  indictment,  to  make  it  appear  to  be  an  actual 
force  indictable  ;  nor  is  any  riot  charged,  or  any  unlawful  assembly. 
Therefore  the  mere  number  makes  no  difference. 

Mr.  Justice  Aston  concurred;  the  true  rule  is,  "That  it  ought  to 
appear  upon  the  face  of  the  indictment  to  be  an  indictable  offence." 

Per  Cur.  unanimously. 

Bide  made  absolute  to  quash  this  indictment.^ 


COMMONWEALTH  v.  GIBNEY. 
Supreme  Judicial  Couut  of  Massachusetts.     1861. 

[Reported  2  Allen,  150.] 

Indictment,  charging  that  the  defendants,  five  in  number,  "  together 
with  divers  others,  to  the  number  of  twelve  and  more,  to  the  jurors 
aforesaid  unknown,  being  evil  disposed  and  riotous  persons,  and  dis- 
turbers of  the  peace  of  said  commonwealth,  on  the  thirty-first  day  ot 
December  in  the  year  of  our  Lord  one  thousand  eiglit  hundred  and 
sixty,  at  North  Andover,  in  the  county  of  Essex  aforesaid,  with  force 
and  arms,  to  wit,  with  clubs,  staves,  stones,  and  other  dangerous  and 
offensive  weapons,  a  certain  building  there  situate,  called  the  Union 
Hall,  the  property  of  one  Thomas  E.  Foy,  in  the  night  time,  unlawfully, 
riotously,  and  routously  did  attack  and  beset,  and  did  then  and  there 
unlawfully,  riotously,  routously,  and  outrageously  make  a  great  noise, 
disturbance,  and  affray  near  to  and  about  the  said  building,  and  did 
unlawfully,  riotously,  and  routously  continue  near  to  and  about  and  in 
the  said  building,  making  such  noise,  disturbance,  and  affray  for  a  long 
space  of  time,  to  wit,  for  the  space  of  one  hour,  and  the  doors  and 
windows  of  the  said  building  did  then  and  there  unlawfully,  riotously, 
*  and  routously,  with  the  dangerous  and  offensive  weapons  aforesaid, 
break,  destroy,  and  demolish,  to  the  great  damage  of  the  said  Thomas 
E.  Fo\-,  to  the  great  terror  of  divers  good  people  of  said  commonwealth 
then  and  there  lawfully  being,  against  the  peace,  "  etc. 

After  a  verdict  of  guilty  in  the  superior  court,  Peter  Gibney,  one  of 
the  defendants,  moved  in  arrest  of  judgment  for  reasons  indicated  in 
the  opinion  ;  but  the  motion  was  overruled  by  Morton,  J.,  and  the 
defendant  alleged  exceptions. 

Dewey,  J.  It  was  held  as  early  as  Regina  v.  Soley,  2  Salk.  594, 
that  judgment  should  be  arrested  and  the  indictment  held  bad,  "  be- 

1  See  Rex  v.  Storr,  3  Burr.  1698 ;  Rex  v.  Wilson,  8  T.  R.  357  ;  Com.  v.  Shattuck, 
4  Cush.  (Mass.)  141  ;  Kilpatrick  v.  People,  5  Denio  (N.  Y.)  277;  Com.  v.  Edwards 
1  Ashm.  (Pa.)  46.  See  State  v.  Burroughs,  7  N.  J.  L.  426  Com.  v.  Powell,  8  Leigh 
(Va.)  719. 


66  COMMONWEALTH    V.    GIBNEY.  [CHAP.  II. 

cause  it  is  not  said  that  the  defendants  unlawfully  assembled."  The 
proposition  thus  stated  seems  to  be  held  as  correct  in  the  later  elemen- 
tary writers.  To  maintain  an  indictment  for  a  riot,  it  is  said  in  Archb. 
Crim.  Pr.  589,  that  the  prosecutor  must  prove:  1.  The  assembling; 
2.  The  intent,  namely,  "that  the}'  so  assembled  together  with  intent 
to  execute  some  enterprise  of  a  private  nature,  and  also  mutually  to 
assist  one  another  against  any  person  who  should  oppose  them  in  doing 
so.  The  intent  is  proved  in  this,  as  in  every  other  case,  by  proving 
facts  from  which  the  jury  may  fairly  presume  it."  The  definition  of  a 
riot  includes  the  statement  "of  three  persons  or  more  assembling  to- 
gether." 1  Russell  on  Crimes,  266.  In  2  Deacon's  Crim.  Law,  1113, 
a  riot  is  said  to  be  "  a  tumultuous  meeting  of  three  or  more  persons, 
who  actually  do  an  unlawful  act  of  violence,  either  with  or  without  a 
common  cause  or  quarrel ; "  "  or  even  do  a  lawful  act,  as  removing  a 
nuisance  in  a  violent  and  tumultuous  manner." 

The  distinction  in  criminal  treatises,  in  the  definitions  of  riots,  routs, 
and  unlawful  assemblies,  assumes  that  there  must  be  an  assembling 
together,  and  an  unlawful  assembly  ;  although  the  assembly  may  not 
have  been  unlawful  on  the  first  coming  together  of  the  parties,  but 
becomes  so  b}'  their  engaging  in  a  common  cause,  to  be  accomplished 
with  violence  and  in  a  tumultuous  manner.  And  the  precedents  for 
indictments  for  a  riot,  with  the  exception  of  a  single  one  in  Davis's 
Precedents,  the  others  in  that  book  being  diflferent,  all  allege  an  un- 
lawful assembling  together.  This  seems  to  be  a  necessary  form  in  a 
proper  indictment  for  a  riot,  although  the  proof  of  such  unlawful  as- 
sembly may  be  made  by  showing  three  or  more  persons  acting  in  con- 
cert in  a  riotous  manner,  as  to  using  violence,  exciting  fear,  etc. 

The  present  indictment  cannot  therefore  be  sustained  as  a  good  in- 
dictment for  a  riot,  for  want  of  proper  allegations  of  the  assembling 
together  of  three  or  more  persons. 

It  cannot  be  sustained  as  an  indictment  for  forcible  entry,  the  alle- 
gations not  being  adapted  to  a  charge  of  that  offence. 

It  cannot  be  sustained  as  an  indictment  for  malicious  mischief,  for 
the  like  reason.  Nor  can  it  be  maintained  as  a  charge  at  common  law 
for  a  disturbance  of  the  peace.  A  man  cannot  be  indicted  for  a  mere 
trespass.  No  indictment  lies  at  common  law  for  mere  trespass  com- 
mitted to  land  or  goods,  unless  there  be  a  riot  or  forcible  entr}-.  The 
King  lu  Wilson,  8  T.  R.  357.  The  words  "violently  and  routously,'' 
here  used,  have  no  particular  pertinency,  except  as  terms  appropriate 
to  a  formal  indictment  for  riot,  charging  also  an  unlawful  assembly. 
In  the  present  indictment  there  is  nothing  more  alleged  than  a  tres- 
pass, with  violence.  There  is  no  allegation  that  any  person  was  in  the 
building,  but  only  of  a  breaking  of  doors  and  windows  of  a  building, 
which  might  be  a  mere  trespass. 

If  the  case  was  a  proper  one  for  an  indictment  for  a  riot,  as  it  prob- 
ably was,  that  offence  not  being  properly  charged,  the  indictment  is 
bad,  and  the  motion  in  arrest  of  judgment  must  prevail. 

Judgment  arrested. 


SECT.  II.]  RESPUBLICA   V.    TEISCHER.  67 

RESPUBLICA  V.  TEISCHER. 
Supreme  Court  of  Pennsylvania.      1788. 

[Reported  1  Dallas,  335.] 

The  defendant  had  been  convicted  in  the  county  of  Berks  upon  an 

indictment  for  maliciously,  wilfully,  and  wickedly  killing  a  horse  ;  and 
upon  a  motion  in  arrest  of  judgment,  it  came  on  to  be  argued  whether 
the  offence,  so  laid,  was  indictable. 

Sergeant,  in  support  of  the  motion,  contended  that  this  was  an  in- 
jury of  a  private  nature,  amounting  to  nothing  more  than  a  trespass  ; 
and  that  to  bring  the  case  within  the  general  rule  of  indictments  for 
the  protection  of  society,  it  was  essential  that  the  injury  should  be 
stated  to  have  been  perpetrated  secretly  as  well  as  maliciously,  —  which 
last  he  said  was  a  word  of  mere  form,  and  capable  of  an  indefinite 
application  to  every  kind  of  mischief.  To  show  the  leading  distinction 
between  trespasses  for  which  there  is  a  private  remedy  and  crimes 
for  which  there  is  a  public  prosecution,  he  cited  Hawk.  PI.  Cr.  210, 
lib.  2,  c.  22,  s.  4  ;  and  he  contended  that  the  principle  of  several 
cases,  in  which  it  was  determined  an  indictment  would  not  lie,  applied 
to  the  case  before  the  court.     2  Stra.  793  ;  1  Stra.  679. 

The  Attorney-General  observed,  in  reply,  that  though  he  had  not 
been  able  to  discover  any  instance  of  an  indictment  at  common  law 
for  killing  an  animal,  or,  indeed,  for  any  other  species  of  malicious 
mischief,  yet  that  the  reason  of  this  was  probably  the  early  interfer- 
ence of  the  statute  law  to  punish  offences  of  such  enormity  ;  for  that 
in  all  the  precedents,  as  well  ancient  as  modern,  he  had  found  the 
charge  laid  contra  formam  statnti,  except  in  the  case  of  an  information 
for  killiug  a  dog,  —  upon  which,  however,  he  did  not  mean  to  rely. 
10  Mod.  337. 

He  said  that  the  law  proceeded  upon  principle,  and  not  merely  upon 
precedent.  In  the  case  of  Wade,  for  embezzling  the  public  money,  no 
precedent  was  produced  ;  and  one  Henry  Shallcross  was  lately  con- 
demned in  Montgomery  County  for  maliciously  burning  a  barn  (not 
having  hay  or  corn  in  it),  though  there  was  certainly  no  statute  for 
punishing  an  offence  of  that  description  in  Pennsylvania.  The  prin- 
ciple, therefore,  is  that  every  act  of  a  public  evil  example  and  against 
good  morals  is  an  offence  indictable  by  the  common  law  ;  and  this 
principle  affects  the  killiug  of  a  horse,  as  much,  at  least,  as  the  burn- 
ing of  an  empty  barn. 

But  he  contended  that  there  were  many  private  wrongs  which  were 
punishable  by  public  prosecution  ;  and  that  with  respect  to  these  a 
distinction  had  been  accurately  established  in  2  Burr.  1129,  where  it  is 
said  that  •'  in  such  impositions  or  deceits  where  common  prudence 
may  guard  persons  against  the  suffering  from  them,  the  offence  is  not 
indictable,  but  the  party  is  left  to  his  civil  remedy  for  the  redress  of 
the  injury  that  has  been  done  him ;  but  where  false  weights  and  meas- 
ures are  used,  or  false  tokens  produced,  or  such  methods  taken  to 


68  KESPUBLICA   V.    TEISCHER.  [CHAP.  IL 

cheat  and  deceive  as  people  cannot  by  any  ordinary  care  or  prudence 
be  guarded  against,  there  it  is  an  offence  indictable."  —  Accordingly, 
in  Crown  Circ.  Comp.  231 ;  1  Stra.  595  ;  8.  C.  Crown  Circ.  Comp. 
24,  are  cases  of  private  wrongs,  and  yet  punished  by  indictment ;  be- 
cause, as  it  is  said  in  Burrow,  common  prudence  could  not  have 
guarded  the  persons  against  the  injury  and  incouveniency  which  they 
respectively  sustained.  The  same  reason  must  have  prevailed  in  an 
indictment  at  Lancaster  (the  draft  of  which  remains  in  the  precedent 
book  of  the  successive  attorneys-general  of  this  State)  for  poisoning 
bread,  and  giving  it  to  some  chickens  ;  and  it  applies  in  full  force  to 
the  case  before  the  court. 

Independent,  however,  of  these  authorities  and  principles,  the  jury 
have  found  the  killing  to  be  something  more  than  a  trespass  ;  and  that 
it  was  done  maliciously  forms  the  gist  of  the  indictment ;  which  must  be 
proved  by  the  prosecutor,  and  might  have  been  controverted  and 
denied  by  the  defendant.  Being  therefore  charged,  and  found  by  the 
verdict,  it  was  more  than  form  ;  it  was  matter  of  substance. 

The  opinion  of  the  court  was  delivered,  on  the  15th  of  July,  by  the 
Chief  Justice. 

M'Kean,  C.  J.  The  defendant  was  indicted  for  "  maliciously,  wil« 
fully,  and  wickedly  killing  a  horse  ;  "  and  being  convicted  by  the  jury, 
it  has  been  urged,  in  arrest  of  judgment,  that  this  offence  was  not  of 
an  indictable  nature. 

It  is  true  that  on  the  examination  of  the  cases  we  have  not  found 
the  line  accurately  drawn ;  but  it  seems  to  be  agreed  that  whatever 
amounts  to  a  public  wrong  may  be  made  the  subject  of  an  indictment. 
The  poisoning  of  chickens,  cheating  with  false  dice,  fraudulently  tear- 
ing a  promissory  note,  and  many  other  offences  of  a  similar  description, 
have  heretofore  been  indicted  in  Pennsylvania;  and  12  Mod.  337, 
furnishes  the  case  of  an  indictment  for  killing  a  dog,  —  an  animal  of 
far  less  value  than  a  horse.  Breaking  windows  by  throwing  stones  at 
them,  though  a  sufficient  number  of  persons  were  not  engaged  to  ren- 
der it  a  riot,  and  the  embezzlement  of  public  moneys,  have,  likewise, 
in  this  State  been  deemed  public  wrongs,  for  which  the  private  sufferer 
was  not  alone  entitled  to  redress  ;  and  unless,  indeed,  an  indictment 
would  lie,  there  are  some  very  heinous  offences  which  might  be  perpe- 
trated with  absolute  impunity ;  since  the  rules  of  evidence,  in  a  civil 
suit,  exclude  the  testimony  of  the  party  injured,  though  the  nature  of 
the  transaction  generally  makes  it  impossible  to  produce  any  other 
proof. 

For  these  reasons,  therefore,  and  for  many  others  which  it  is  un- 
necessary to  recapitulate,  as  we  entertain  no  doubt  upon  the  subject, 
we  think,  the  indictment  will  lie. 

Let  judgment  be  entered  for  the  Commonwealth.^ 

1  See  U.  S.  V.  Gideon  1  Minn.  292;  State  r.  Beekman,  3  Dutch  (N.  J.)  124; 
Loomis  V.  Edgerton,  19  Wend.  (N.  Y.)  419;  State  i;.  Phipps,  10  Ire.  (N.  C.)  17. 


SECT.  11.]  COMMONWEALTH    V.   TAYLOR.  69 

COMMONWEALTH  v.  TAYLOR. 

Supreme  Court  of  Pennsylvania.  1812. 

[Reported  5  Binneij  277.] 

The  defendant  was  indicted  in  the  Quarter  Sessions  of  Franklin 
county  for  "that  he,  on  the  24th  of  August  1809,  about  the  hour  of  ten 
of  the  clock  in  the  nifjht  of  the  same  day,  with  force  and  arms  at 
Lurgan  township,  in  the  count}'  aforesaid,  the  dwelling  house  of  James 
Strain  there  situate,  unlawfalh',  maliciously,  and  secretly  did  break 
and  enter,  with  intent  to  disturb  the  peace  of  the  commonwealth  ;  and 
so  being  in  the  said  dwelling  house,  unlawfull}',  vehemently,  and  tur- 
bulently  did  make  a  great  7ioise,  in  disturbance  of  the  peace  of  the 
commonwealth  and  greatly  misbehave  himself,  in  the  said  dwelling 
house  ;  and  Elizabeth  Strain,  the  wife  of  the  said  James,  greatly  did 
frighten  and  alarm,  b\-  means  of  which  said  fright  and  alarm  she  the 
said  Elizabeth,  being  then  and  there  pregnant,  did  on  the  7th  day  of 
September  in  the  year  aforesaid  at  the  county  aforesaid  miscarry,  and 
other  wrongs  to  the  said  Elizabeth  then  and  there  did,  to  the  evil 
example,  &c." 

The  jury  having  found  the  defendant  guilty,  the  Quarter  Sessions 
arrested  the  judgment  upon  the  ground  tliat  the  offence  charged  was 
not  indictable;  and  the  record  was  brought  up  to  this  Court  by  writ 
of  error. 

TiLGHMAM,  C.  J.  It  is  contended  on  the  part  of  James  Taylor,  that 
the  matter  charged  in  the  indictment  is  no  more  than  a  private  trespass, 
and  not  an  offence  subject  to  a  criminal  prosecution.  On  the  other 
hand  it  has  been  urged  for  the  commonwealth  that  the  offence  is  indict- 
able;  1st,  as  a  forcible  entr}-,— 2d,  as  a  malicious  mischief. 

1.  I  incline  to  the  opinion  that  the  matter  charged  in  the  indictment 
does  not  constitute  a  forcible  entry,  although  no  doubt  a  forcible  entry 
is  indictable  at  common  law.  There  must  be  actual  force  to  make  an 
indictable  offence.  The  bare  allegation  of  its  being  done  with  force 
and  arms,  does  not  seem  to  be  sufficient ;  for  every  trespass  is  said  to 
be  with  force  and  arms.  In  the  King  v.  Storr,  3  Burr.  1698,  the  indict- 
ment was  for  unlawfully  entering  his  3'ard  and  digging  the  ground  and 
erecting  a  shed,  and  unlawfully  and  with  force  and  arms  putting  out 
and  expelling  one  Mr.  Sweet  the  owner  from  the  possession,  and  keep- 
ing him  out  of  the  possession.  This  indictment  was  quashed.  The 
King  V.  Bake  and  fifteen  others,  3  Burr.  1731,  was  an  indictment  for 
breaking  and  entering  with  force  and  arms  a  close  (not  a  dwelling 
house),  and  unlawfully  and  unjustly  expelling  the  prosecutors,  and 
keeping  them  out  of  possession.  This  also  was  quashed,  and  the  rule 
laid  down  by  all  the  court  was  that  there  must  be  force  or  violence 
shewn  upon  the  face  of  the  indictment,  or  some  riot  or  unlawful  assem- 
bly.    It  appears  indeed  that  in  the  King  v.  Bathurst,  cited  and  re- 


70  COMMONWEALTH    V.    TAYLOR.  [CHAP.  II. 

marked  by  the  judges  in  the  King  o.  Storr,  the  court  laid  considerable 
stress  on  the  circumstance  of  entering  a  dweUing  house.  We  have  no 
report  of  that  case,  but  Lord  Mansfield's  observation  on  it  (3  Burr. 
1701)  is  that  it  does  not  seem  to  him  to  lay  down  any  such  rule  as 
that  force  and  arms  alone  implies  such  force  as  will  of  itself  support  an 
indictment.  "  Tliere,"  says  he,  "  the  fact  itself  naturally  implied  force ; 
it  was  turning  and  keeping  the  man  out  of  his  dwelling  house,  and 
done  by  three  people."  In  the  case  before  us,  there  is  the  less  reason 
to  suppose  actual  force,  as  the  entry  is  charged  to  have  been  made  se- 
cretly. This  might  have  been  done  through  a  door  which  was  open, 
and  yet  in  point  of  law,  it  was  a  breaking  and  entry  with  force  and  arms, 
which  is  the  allegation  in  every  action  of  trespass. 

2.  But  supposing  the  indictment  not  to  be  good  for  a  forcible  entry, 
may  it  not  be  supported  on  other  grounds?     In  the  case  of  the  Com- 
monwealth V.  Teischer,  1  Dall.  335,  judgment  was  given  against  the  de- 
fendant   for    "maliciously,    wilfully    and  wickedly  killing    a    horse." 
These  are  the  words  of  the  indictment,  and  it  seems  to  have  been  con- 
ceded by  Mr.  Sergeant,  the  counsel  for  the  defendant,  that  if  it  had 
been  laid  to  be  done  secretly,  the  indictment  would  have  been  good. 
Here  the  entering  of  the  house  is  laid  to  be  done  "  secretly,  maliciously, 
and  with  an  attempt  to  disturb  the   peace  of  the  commonwealth.     I 
do  not  find  any  precise  line  by  which  indictments  for  malicious  mischief 
are  separated  from  actions  of  trespass.     But  whether  the  malice,  the 
mischief,  or  the  evil  example  is  considered,  the  case  before  us  seems 
full  as  strong  as  Teischer's  case.     There  is  another  principle,  however, 
upon  which  it  appears  to  me  that  the  indictment  may  be  supported. 
It  is  not  necessary  that  there  should  be  actual  force  or  violence  to  con- 
stitute an  indictable  otfence.     Acts  injurious  to  private  persons,  which 
tend  to  excite  violent  resentment,  and  thus  produce   fighting  and  dis- 
turbance of  the  peace  of  society,  are  themselves  indictable.     To  send  a 
challenge  to  fight  a  duel  is  indictable,  because  it  tends  directly  towards 
a  breach  of  the  peace.     Libels  fall  within  the  same  reason.     A  libe) 
even  of  a  deceased  person  is  an  offence  against  the  public,  because  it 
may  stir  up  the  passions  of  the  living  and  produce  acts  of  revenge. 
Now  wbat  could  be  more  likely  to  produce  violent  passion  and  a  dis- 
turbance of  the  peace  of  society,  than  the  conduct  of  the  defendant? 
He  enters  secretly  after  night  into  a  private  dwelling  house,  with  an 
intent  to  disturb  the  family,  and  after  entering  makes  such  a  noise  as 
to  terrify  the  mistress  of  the  house  to  such  a  degree  as  to  cause  a  mis- 
carriage.    Was  not  this  enough  to  produce  some  act  of  desperate  vio- 
lence on  the  part  of  the  master  or  servants  of  the  family  ?     It  is  objected 
that  the  kind  of  noise  is  not  described  ;  no  matter,  it  is  said  to  have 
been  made  vehemently  and  turbulently,  and  its  effects  on  the  pregnant 
woman  are  described.  ^    In  the  case  of  the  King  v.  Hood  (Sayers'-Rep. 
in  K.  B.  161)  the   court  refused  to  quash  an  indictment  for  disturbing 
a  family  by  violently  knocking  at  the  front  door  of  the  house  for  the 
space  of  two  hours.     It  is  impossible  to  find  precedents  for  all  offences. 


SECT.  II.]  COMMONWEALTH    V.   TAYLOR.  71 

The  malicious  ingenuity  of  mankind  is  constantly  producing  new  invcn 
tions  in  the  art  of  disturbing  their  neighbours.  To  this  invention  must 
be  opposed  general  principles,  calculated  to  meet  and  punish  them.  I 
am  of  opinion  that  the  conduct  of  the  defendant  falls  within  the  rano-e 
of  established  principles,  and  that  the  judgment  of  the  Court  below 
should  be  reversed. 

Brackenridge,  J.  It  cannot  be  inferred,  vi  termini^  that  the  word 
"  break  "  means  more  than  a  clausumf regit,  or  a  breaking  of  the  close  in 
contemplation  of  law,  even  though  a  dwelling  house  was  the  close 
broken;  because  the  trespass  might  be  by  walking  into  it,  the  door 
open.  But  the  court  might  refuse  to  quash,  because  it  might  appear 
on  the  evidence  that  the  breaking  amounted  to  more  than  a  daiisum 
fregit  in  trespass.  But  taking  the  entry  to  amount  to  nothing  more 
than  a  walking  in,  the  door  open,  may  not  the  motive  of  his  entry,  and 
the  use  he  made  of  it,  constitute  a  misdemeanor?  What  is  he  alleged 
to  have  done,  after  entering  the  house?  "  Wilfully,  vehemently,  and 
turbiilently  did  make  a  great  noise."  How  is  a  noise  occasioned  that  is 
perceptible  to  the  ear?  It  must  be  by  an  impulse  of  the  air  on  the 
organs  of  hearing.  And  what  is  it,  whether  it  is  by  the  medium  of  air, 
or  water,  or  earth,  that  an  assault  and  battery  is  committed?  The  im- 
pulse of  the  air  may  give  a  great  shock.  Birds  have  fallen  from  the 
atmosphere  struck  by  a  mighty  voice.  This  happened  at  the  celebra- 
tion of  the  Isthmian  games,  as  related  by  Plutarch  in  his  life  of  Paulus 
Emilius.  Are  we  bound  to  consider  the  noise  gentle?  Are  we  not  at 
liberty  to  infer  the  mightiest  effort  of  the  human  lungs?  But  the 
power  of  imagination  increases  the  effect.  Armies  have  been  put  to 
rout  by  a  shout.  The  king  of  Prussia  in  the  seven  years'  war  won  a 
battle  by  the  sound  of  artillery  without  ball.  Individuals  have  been 
thrown  into  convulsions  bj-  a  sudden  fright  from  a  shout.  The  infant 
in  the  womb  of  a  pregnant  woman  has  been  impressed  with  a  physical 
effect  upon  the  body,  and  even  upon  the  mind,  by  a  fright.  Mary, 
queen  of  Scots,  from  the  assassination  of  Rizzio,  communicated  to  her 
offspring  the  impression  of  fear  at  the  sight  of  a  drawn  sword.  Peter 
the  Great  of  Russia  had  a  dread  of  embarking  on  water  from  the  same 
cause.  Shall  we  wonder  then  that  death  is  occasioned  to  the  embryo, 
in  the  womb  of  a  pregnant  woman,  by  a  sudden  fright?  If  in  this 
indictment  it  had  been  stated  that  the  woman  was  pregnant  with  a  liv- 
ing child,  it  might  have  been  homicide.  But  she  is  stated  to  have  mis- 
carried, which  is  the  parting  with  a  child  in  the  course  of  gestation. 
Will  not  the  act  of  the  individual  maliciously  occasioning  this,  consti- 
tute a  misdemeanor?  A  sudden  fright  even  by  an  entry  without  noise, 
presenting  the  appearance  of  a  spectre,  might  occasion  this,  even  though 
in  playful  frolic  ;  3-et  after  such  effect,  would  not  the  law  impute  malice? 
No  pex'son  has  a  right  to  trifle  in  that  manner  to  the  injury  of  another.^ 

1  Part  of  the  opinion  of  Brackenridge,  J.,  and  the  concurring  opinion  of  Yeates,  J., 
are  omitted.  See  State  v.  Huntley,  3  Ire.  (N.  C.)  418;  State  v.  Tolever,  5  Ire.  (N.  C.| 
452;  I'enns  v.  Cribs,    Add.  (Pa.)  277  ;  Henderson  v.  Com.,  8  Gratt.  (Va  )  708. 


72  REGINA   V.    ADAMS.  [CHAP.  II. 

REGINA  V.  ADAMS. 

Court  for  Crown  Cases  Reserved.     1888. 

[Reported  22  Q.  B.  D.  G6.] 

Case  stated  b}-  the  Recorder  of  London  for  the  opinion  of  the  Court 
for  the  Consideration  of  Crown  Cases  Reserved. 

At  the  sessions  of  the  Central  Criminal  Court,  held  on  September  17, 
1888,  J.  C.  Adams  was  tried  on  an  indictment  which  charged  him,  in 
the  third  count,  with  having,  on  June  19,  1888,  unlawfuU}-,  wickedh-, 
and  malicioush'  written  and  published  to  E.  S.  Y.,  the  younger,  who 
was  a  good,  peaceal)le,  virtuous,  and  worthy  subject  of  our  Lady  the 
Queen,  in  the  form  of  a  letter  directed  to  her,  tlie  said  E.  S.  Y.,  the 
said  letter  containing  divers  false,  scandalous,  malicious,  and  defama- 
tory^ matters  and  things  of  and  concerning  the  said  E.  S.  Y.,  and  of 
and  concerning  the  character  for  virtue,  modest}',  and  morality  then 
borne  by  the  said  E.  S.  Y.  [the  letter  was  set  out],  to  the  great  damage, 
scandal,  infamy-,  and  disgrace  of  the  said  E.  S.  Y.,  to  the  evil  example, 
etc.,  and  against  tlie  peace,  etc.^ 

At  the  close  of  tlie  case  for  the  prosecution  counsel  for  the  prisoner 
submitted  that  there  was  no  case  to  go  to  the  jury,  on  the  grounds 
{inter  alia)  that  to  write  and  send  to  a  person  letters  in  the  form  of 
those  set  out  in  the  indictment  was  not  an  indictable  offence  ;  that  the 
letter  set  out  in  the  tliird  count  was  neither  a  defamatory  libel  nor  an 
obscene  libel ;  and  that  there  liad  been  no  publication  of  it. 

The  recorder  declined  to  stop  tlie  case  upon  the  ol>jections  taken, 
but  left  it  to  the  jur}',  who  convicted  the  prisoner  on  all  the  counts  of 
the  indictment. 

The  recorder  thereupon  respited  judgment  and  admitted  the  prisoner 
to  bail. 

The  question  for  the  opinion  of  the  Court  was  whether,  upon  the 
facts  stated,  the  prisoner  could  properly  be  convicted  on  all  or  an}-  of 
the  counts  of  the  indictment. 

Lord  Coleridge,  C.  J.  It  is  unnecessary  to  discuss  some  of  the 
important  questions  which  have  been  raised  in  this  case.  Upon  those 
questions,  therefore,  I,  and  I  believe  the  other  members  of  the  Court, 
desire  to  give  no  opinion.  It  appears  to  me  that  there  is  a  very  short 
and  plain  ground  upon  which  this  conviction  can  be  sustained.  It  is  a 
conviction  upon  an  indictment,  tiie  third  count  of  which  charges  that 
tlie  letter  there  set  out  is  a  defamatory  libel,  tending  to  defame  and 
bring  into  contempt  the  character  of  the  person  to  whom  it  was  sent. 
I  am  of  tlie  opinion  that  the  letter  is  of  such  a  character  as  that  it  tended 
to  provoke  a  breach  of  the  peace.  At  all  events,  the  sending  of  such 
a  letter  to  the  person  to  whom  it  was  sent  might,  under  the  circum- 
stances of  her  position  and  character,  reasonably  or  probably  tend  to 
provoke  a  breach  of  the  peace  on  her  part,  or  on  the  part  of  those  coa- 

1  The  evidence  is  omitted.  —  Ed. 


SECT,  II.]  COMMONWEALTH   V.   WING.  73 

nected  with  her.  The  jury  must  be  taken  to  have  found  tliat  it  was  a 
defamatoiy  libel  which  was  calculated  to  provoke  a  breach  of  the  peace  ; 
and  on  that  short  ground  I  am  of  opinion  that  the  conviction  must  be 
affirmed  on  the  third  count  of  the  indictment. 

Manisty,  Hawkins,  Day,  and  A.  L.  Smith,  JJ.,  concurred. 

Conviction  affirmed.^ 

REX   V.   HATHAWAY. 

King's  Bench.     1701. 

[Reported  12  Mod.  556.] 

One  Hathaway,  a  most  notorious  rogue,  feigned  himself  bewitched 
and  deprived  of  his  sight,  and  pretended  to  have  fasted  nine  weeks 
together ;  and  continuing,  as  he  pretended,  under  this  evil  influence,  he 
was  advised,  in  order  to  discover  the  person  supposed  to  have  be- 
witched him,  to  boil  his  own  water  in  a  glass  bottle  till  the  bottle 
should  break,  and  the  first  that  came  into  the  house  after  should  be 
the  witch  ;  and  that  if  he  scratched  the  body  of  that  person  till  he 
fetched  blood,  it  would  cure  him  ;  which  being  done,  and  a  poor  old 
woman  coming  by  chance  into  the  house,  she  was  seized  on  as  the 
witch  and  obliged  to  submit  to  be  scratched  till  the  blood  came ; 
whereupon  the  fellow  pretended  to  find  present  ease.  The  poor  woman 
hereupon  was  indicted  for  witchcraft,  and  tried  and  acquitted  at  Surrey 
assizes  before  Holt,  C.  J.,  a  man  of  no  great  faith  in  these  things  :  and 
the  fellow  persisting  in  his  wicked  contrivance,  pretended  still  to  be  ill, 
and  the  poor  woman,  notwithstanding  the  acquittal,  foi'ced  bj-  the  mob 
to  suffer  herself  to  be  scratched  by  hiin.  And  this  being  discovered 
to  be  all  imposition,  an  information  was  filed  against  him. 


COMMONWEALTH   v.   WING. 
Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Reported  9  Pickering,  1.] 

The  defendant  was  indicted  for  maliciously  discharging  a  gun, 
whereby  a  woman,  named  M.  A.  Gifford,  was  thrown  into  convul- 
sions and  cramps.  It  was  averred  that  the  defendant  well  knew  that 
she  was  subject  to  such  convulsions  and  cramps  upon  the  firing  of  a 
gun,  and  that  at  the  time  when  the  offence  was  committed,  he  was 
warned  and  requested  not  to  fire. 

The  case  was  tried  before  Wilde,  J. 

It  was  proved  that  M.  A.  Gifford  was  severely  affected  with  a 
nervous  disorder,  and  that  she  was  uniformly  thrown  into  a  fit  upon 
hearing  a  gun,  thunder,  or  any  other  sudden  noise,  or  by  hearing  the 

1  See  State  v.  Roberts,  2  Marv.  (Del.)  450;  Com.  v.  Chapman,  1.3  Met.  (Mass.)  6& 
Compare  Eex  v.  Freake,  Comb.  13 ;  Reg.  v.  Taylor,  2  Ld.  Raym.  879 ;  State  v.  Edena, 
95  N.  C.  693. 


74  COMMONWEALTH   V.    WING.  [CHA.P.  II. 

words  "gun,  Jimmunition,"  &c.  mentioned.     It  was  also  proved  that 
she  had  been  in  this  situation  for  more  than  six  years. 

It  was  furtlier  proved  that  the  defendant  discharged  tlie  gun  in  a 
highway,  for  the  purpose  of  killing  a  wild  goose,  at  a  place  two  or 
three  rods  from  the  house  in  which  M.  A.  Gifford  then  lived  ;  which 
house  was  situated  on  a  neck  of  land  where  citizens  had  from  time 
immemorial  resorted  for  the  purpose  of  fowling.  And  it  was  also 
proved  that  immediately  before  the  defendant  discharged  his  gun,  he 
was  requested  by  M.  A.  Gifford's  father  not  to  fire,  as  it  would  throw 
his  daughter  into  fits ;  and  evidence  also  was  introduced  showing  the 
defendant's  previous  knowledge  of  the  effect  produced  on  her  by  the 
report  of  a  gun,  especially  when  discliarged  near  to  her. 

The  defendant  contended  that  as  he  was  engaged  in  a  lawful  occu- 
pation, and  as  M.  A.  Gifford  had  for  so  long  a  time  been  afflicted 
with  what  had  probably  become  an  incurable  disease,  he  was  not 
liable  to  punishment  for  tlie  commission  of  tlie  act  alleged  in  the 
indictment. 

The  judge  instructed  the  jury  that  if  they  believed  that  the  defen- 
dant knew,  or  had  good  reason  to  believe,  tliat  the  consequences 
above  mentioned  would  be  produced  by  the  firing  of  the  gun,  and  had 
notice  to  that  effect  immediately  before  the  firing,  they  should  return 
a  verdict  of  guilty  ;  which  tliey  did  accordingly.  If  this  instruction 
was  wrong,  a  new  trial  was  to  be  granted. 

JVarren  for  the  defendant.  The  indictment  is  for  an  alleged  of- 
fence, which  is  technically  called  a  nuisance.  It  cannot  be  sustained, 
because  the  act  done  was  not  to  the  annoyance  of  the  citizens  gener- 
ally'. Bac.  Abr.  Nuisance  B  ;  Rex  lk  AVliite,  1  Burr.  333  ;  Rex  v. 
Combrune,  1  Wils.  301 ;  Rex  v.  Wheatly,  2  Burr.  1126  ;  Rex  v.  Lloyd, 
4  Esp.  200  ;  Arnold  v.  Jefferson,  3  8alk.  248.  The  act,  in  itself,  was 
neither  malum  in  se  nor  malum  'proliihitum.  The  defendant  was  in 
the  exercise  of  a  lawful  employment,  and  the  injury  was  to  a  single 
person.  Her  remedy  is  by  action  ;  the  Commonwealth  is  not  inter- 
ested in  the  matter.  The  dictum  of  Sewall,  C.  J.,  in  Cole  v.  Fisher, 
11  Mass.  R.  139,  —  tliat  where  the  discharge  of  a  gun  is  unnecessary, 
a  matter  of  idle  sport  and  negligence,  and  still  more  where  it  is  ac- 
companied with  purposes  of  wanton  and  deliberate  mischief,  the 
party  is  liable  as  a  public  offender,  —  does  not  apply  to  this  case  ;  for 
the  act  of  the  defendant  does  not  come  within  either  of  those  de- 
scriptions, and  it  was  not  done  to  the  common  danger  of  the  citizens, 
but  on  a  neck  of  land  where  citizens  had  immemorially  resorted  for 
the  purpose  of  fowling. 

The  nature  of  the  disease  is  such  that  a  citizen  was  not  obliged, 
from  regard  to  it,  to  refrain  from  his  usual  lawful  pursuits.  AVhere 
a  person  is  suffering  under  a  complaint  which  is  aggravated  by  the 
transaction  of  the  ordinary  business  of  society,  it  is  better  that  he 
should  suffer  than  that  the  business  of  the  community  should  be  sus- 
pended.    It  is  certainly  better  that  he  should  be  left  to  that  remedy 


SECT.  II.J  REX   V.   MAUD.  75 

which  the  law  gives  every  mau  for  a  violation  of  liis  private  rights. 
If  tlie  above  doctrine  is  not  sound  as  applied  to  temporary  diseases, 
it  is  when  tlie  affection  is  of  so  long  standing  as  in  this  case.  An 
action  cannot  l)e  sustained  for  an  injury  which  the  party  niiglit  have 
avoided  by  ordinary  care.  It  was  the  duty  of  the  woman  to  have 
removed  from  a  neighborhood  where  the  citizens  have  immeniorially 
pursued  an  occupation  which  injuriously  affected  her  health.  liulti-r- 
field  V.  Forrester,  11  East,  CO;  Smith  v.  Smith,  2  Pick.  621  ;  Rex  v. 
Cross,  2  Carr.  &  Payne,  483. 

jWor'ton,  Attorney-General,  contra,  cited  4  Bl.  Com.  197;  and  Cole 
V.  Fisher,  11  Mass.  R.  139. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  If  the  indict- 
ment were  for  a  nuisance,  the  authorities  cited  by  the  defendant's 
counsel  would  clearly  show  that  it  could  not  be  sustained  ;  for  tlie 
most  that  could  be  made  of  it  would  be  a  private  nuisance,  for  which 
an  action  on  the  case  only  would  lie.  But  we  think  the  offence  de- 
scribed is  a  misdemeanor,  and  not  a  nuisance.  It  was  a  wanton  act 
of  mischief,  necessarily  injurious  to  the  person  aggrieved,  after  full 
notice  of  the  consequences,  and  a  request  to  desist.  The  jury  have 
found  that  the  act  was  maliciously  done. 

In  the  case  of  Cole  v.  Fisher,  11  Mass.  R.  137,  Chief  Justice  Sewall, 
in  delivering  the  opinion  of  the  court,  speaking  of  the  discharging  of 
guns  unnecessarily,  says,  if  it  is  a  matter  of  idle  sport  and  negligence, 
and  still  more  when  the  act  is  accompanied  with  purposes  of  wanton 
or  deliberate  mischief,  the  guilty  party  is  liable,  not  only  in  a  civil 
action,  but  as  an  offender  against  the  public  peace  and  security,  is 
liable  to  be  indicted,  &c. 

Now  the  facts  proved  in  the  case,  namely,  the  defendant's  previous 
knowledge  that  the  woman  was  so  affected  by  the  report  of  a  gun  as 
to  be  thrown  into  fits,  the  knowledge  he  had  that  she  was  within 
hearing,  the  earnest  request  made  to  him  not  to  discharge  his  gun, 
show  such  a  disregard  to  the  safety  and  even  the  life  of  the  afHicted 
party,  as  makes  the  firing  a  wanton  and  deliberate  act  of  7iiischief. 

Judgment  on  the  verdict.^ 


REX  V.   MAUD. 

Bedfordshire  Eyre.     1202. 
[Reported  1  Selden  Soc.  27.] 

Maud,  wife  of  Hugh,  was  taken  with  a  false  gallon  with  which  she 
sold  beer,  so  that  the  keepers  of  the  measures  testify  that  they  took 
her  selling  beer  with  it.  And  since  she  cannot  defend  this,  it  is 
considered  that  she  be  in  mercy.     She  made  fine  with  two  marks. 

1  But  see  Rogers  v.  Elliott,  146  Mass.  349.  Compare  State  v.  Buckman,  8  N.  H. 
203  ;  Peoples.  Blake,  1  Wheel.  (N.  Y.)  490.  For  other  kinds  of  personal  injury,  see 
State  V.  Cooper,  2  Zab.  (N.J.)  52;  State  v.  Slagle,  82  N.  C.  653;  Reg.  v.  Hogan, 
2  Den.  C.  C.  277;  Com.  v.  Stoddard,  9  All.  (Mass.)  280;  Rex  v.  Treeve,  2  East  P.  C 
821  ;  State  v.  Smith,  3  Hawks  (N.  C.)  378. 


76  EEGINA   V.    HANNON.  [CHAP.   H. 

ANONYMOUS. 

Common  Bench.    1309. 

[Reported  Year  Book,  2  &  3  Ediv.  II  {Seld.  Soc.)  120.] 

A  MAN  was  sued  by  the  commonalty  of  the  town  of  London  for  a  tres- 
pass against  the  statute  of  forestallers  (made)  in  the  Guildhall,  and 
(the  plaintiffs)  said  that,  whereas  all  the  citizens  of  London  came  for 
their  merchandise  and  foreign  folk  came  with  their  merchandise  to 
the  cit}^,  to  wit,  with  beasts,  sheep,  and  poultry,  etc.,  without  which 
the  city  cannot  be  sustained,  tliis  man  is  a  common  forestaller  of  all  the 
things  aforesaid,  so  that  when  he  has  bought  them  ^or  a  certain  sum 
he  will  sell  them  for  double,  wrongfully  and  against  the  common 
ordinance,  and  to  their  damage,  etc. 

Passeleij  for  the  defendant :  We  do  not  believe  that  you  have  war- 
rant to  try  this  plaint,  for  this  is  a  matter  wliich  should  be  tried  in  the 
evre,  like  a  charge  that  a  man  is  a  common  thief,  a  common  robber, 
or  a  common  breaker  of  parks,  where  no  certain  deed  is  laid  to  his 
charo-e.  The  suit  cannot  be  maintained  unless  some  certain  fact  be 
mentioned ;  for,  were  it  otherwise,  every  man  might  have  this  suit, 
whereas  it  belongs  to  the  King  and  to  his  crown,  which  is  not  to  be 
dismembered.  Judgment,  whether  you  can  or  ought  to  be  received 
to  this  plaint. 

Therefore  it  was  awarded  that  they  took  nothing  of  their  plaint,  etc. 
(and  that  the  commonalty  of  London  be  amerced). 


REGINA  V.  HANNON. 

Queen's  Bench.     1704. 

[Reported  6  Mod.  311.] 

Hannon  was  indicted,  for  that  being  a  commimis  deceptor  of  the 
Queen's  people,  he  came  to  the  wife  of  B.  and  made  her  believe  that 
he  had  sold  part  of  a  ship  to  her  husband,  and  upon  that  account  got 
several  sums  of  monej'  from  her. 

Br  THE  Court, 

First,  ^'•communis  deceptor"  is  too  general,  and  so  is  ^'communis 
oppressor"  "  commnnis  pertuhator,'"  etc.  and  so  of  all  other  (except 
barretor  and  scold),  without  adding  of  particular  instances. 

Secondl}',  The  particular  instance  alledged  here  is  of  a  private  nature ; 
if  he  had  made  use  of  any  false  token  it  would  have  been  otherwise. 

And  the  court  ordered  the  indictment  to  be  quashed. 


SECT.  II.J  EKX   V.   WHEATLY. 


77 


REX  y.  WHEATLY. 
King's  Bench.     1761. 

[Reported  2  Burrow,  1125.1] 

Defendant  was  indicted,  for  that  lie,  l)eing  a  common  brewer,  and 
intending  to  deceive  and  defraud  one  Richard  Webb,  delivered  to  him 
sixteen  gallons,  and  no  more,  of  amber  beer,  for  and  as  eighteen  gal- 
lons, which  wanted  two  gallons  of  the  due  measure  contracted  to  be 
delivered  ;  and  received  15s  for  the  same;  to  the  evil  example,  &c., 
and  against  the  peace,  &c.  After  conviction  before  Lord  Mansfield, 
C.  J.,  at  Guildhall,  Morton  moved  in  arrest  of  judgment. 

Mr.  JJorton  and  Mr.  Yates,  who  were  of  counsel  for  the  defendant, 
objected  that  tlie  fact  charged  was  nothing  more  than  a  mere  breach  of 
a  civil  contract,  not  an  indictable  oflence.  To  prove  this,  they  cited 
Rex  V.  Combrun,  p.  1751,  24  G.  2  B.  R.,  which  was  exactl}'  and  punc- 
tually the  same  case  as  the  present,  only  mutatis  mutandis.  And 
Rex  V.  Driffield,  Tr.  1754,  27,  28  G.  2  B.  R.  S.  P.  An  indictment  for 
a  cheat,  in  selling  coals  as  and  for  two  bushels,  whereas  it  was  a  peck 
short  of  that  measure  ;  there  the  indictment  was  quashed  on  motion. 
Rex  V.  Hannah  Heath :  An  indictment  for  selling  and  delivering 
seventeen  gallons,  three  quarts,  and  one-half  pint  of  geneva  (and  the 
like  of  brandy)  as  and  for  a  greater  quantity,  was  quashed  on  motion. 

In  1  Salk.  151.,  Nehuff's  Case,  P.  4  Am.  B.  R.,  a  certiorari  was 
granted  to  remove  the  indictment  from  the  Old  Bailey  ;  because  it  was 
not  a  matter  criminal :  it  was  "  borrowing  £600  and  promising  to  send 
a  pledge  of  fine  cloth  and  gold  dust,  and  sending  only  some  coarse 
cloth,  and  no  gold  dust." 

In  Tremaine,  title  Indictments  for  Cheats,  all  of  them  either  la}'  a 
conspiracy  or  show  something  amounting  to  a  false  token. 

A  mere  civil  wrong  will  not  support  an  indictment.  And  here  is  no 
cnminal  charge.  It  is  not  alleged  "  that  he  used  false  measures." 
The  prosecutor  should  have  examined  and  seen  that  it  was  the  right 
and  just  quantity. 

Mr.  Norton,  pro  rege,  offered  the  following  reasons  why  the  judg- 
ment should  not  be  arrested. 

The  defendant  has  been  convicted  of  the  fact.  He  may  bring  a  writ 
of  error,  if  the  indictment  is  erroneous. 

1  s.  c.  1  William  Blackstone,  273.  The  statement  of  the  case  is  taken  from  tlie 
latter  report. 


78  EEX   V.   WHEATLY.  [CHAP.  II, 

This  is  an  indictable  offence  ;  't  is  a  cheat,  a  public  fraud  in  the 
course  of  his  trade,  —  he  is  stated  to  be  a  brewer.  There  is  a  distinction 
between  private  frauds  and  frauds  in  the  course  of  trade.  The  same 
fact  may  be  a  groiuui  for  a  private  action,  and  for  an  indictment  too. 

None  of  tlie  cited  cases  were  after  verdict.  It  might  here  (for  augiit 
that  appears  to  the  contrary)  have  been  proved  '•'•  that  he  sold  this  less 
quantity  by  false  measure ;  "  and  everything  shall  be  presumed  in 
favor  of  a  verdict.  And  here  is  a  false  pretence,  at  the  least ;  and  it 
appeared  upon  the  trial  to  be  a  very  foul  case. 

The  counsel  for  the  defendant,  in  repl^-,  said,  that  nothing  can  be 
intended  or  presumed  in  a  criminal  case  but  secnnchrm  allegata  et 
probata;  it  might  happen  without  his  own  personal  knowledge.  And 
they  denied  any  distinction  between  tiiis  being  done  privately  and  its 
being  done  in  the  course  of  trade. 

Lord  Mansfield.  The  question  is.  Whether  the  fact  here  alleged 
be  an  indictable  crime  or  not.     The  fact  alleged  is  :  — 

[Then  his  Lordship  stated  the  charge,  verhatimr^ 

The  argument  that  has  been  urged  by  the  prosecutor's  counsel,  from 
the  present  case's  coming  ))efore  the  court  after  a  verdict,  and  the  cases 
cited  being  only  of  quashing  upon  motion,  before  any  verdict  really  turns 
the  other  wa}' ;  because  the  Court  ma}'  use  a  discretion,  "  whether  it  be 
right  to  quash  upon  motion  or  put  the  defendant  to  demur  ;  "  but  after 
verdict  they  are  obliged  to  arrest  the  judgment  if  they  see  the  charge  to 
be  insufficient.  And  in  a  criminal  charge  there  is  no  latitude  of  inten- 
tion, to  include  anything  more  than  is  charged  ;  the  charge  must  be 
explicit  enough  to  support  itself. 

Here  the  fact  is  allowed,  but  the  consequence  is  denied  :  the  objec- 
tion is,  that  the  fact  is  not  an  offence  indictable,  though  acknowledged 
to  be  true  as  charged. 

And  that  the  fact  here  charged  should  not  be  considered  as  an  indic- 
table offence,  but  left  to  a  civil  remedy  by  an  action,  is  reasonable  and 
right  in  the  nature  of  the  thing ;  because  it  is  only  an  inconvenience 
and  injury  to  a  private  person,  arising  from  that  private  person's  own 
negligence  and  carelessness  in  not  measuring  the  liquor,  upon  receiving 
it,  to  see  whether  it  held  out  the  just  measure  or  not. 

The  offence  that  is  indictable  must  be  such  a  one  as  affects  the  pub- 
lic. As  if  a  man  uses  false  weights  and  measures,  and  sells  by  them 
to  all  or  to  many  of  his  customers,  or  uses  them  in  the  general  course 
of  his  dealing;  so,  if  a  man  defrauds  another,  under  false  tokens.  For 
these  are  deceptions  that  common  care  and  prudence  are  not  sufficient 
to  guard  against.  So,  if  there  be  a  conspii'acy  to  cheat ;  for  ordinary 
care  and  caution  is  no  guard  against  this. 

Those  cases  are  much  more  than  mere  private  injuries :  they  are 
public  offences.  But  here,  it  is  a  mere  private  imposition  or  deception. 
No  false  weights  or  measures  are  used,  no  false  tokens  given,  no  con- 
spiracy' ;  only  an  imposition  upon  the  person  he  was  dealing  with,  in 
delivering  him  a  less  quantity  instead  of  a  greater,  which  the  other 


SECT.  H.j  REX   V.   WHEATLY.  79 

carelessly  accepted.  '  T  is  only  a  non-performance  of  his  contract,  for 
which  non-performance  he  may  bring  his  action. 

The  selling  an  unsound  horse,  as  and  for  a  sound  one,  is  not  indic- 
table ;  the  buyer  should  be  more  upon  his  guard. 

The  several  cases  cited  are  alone  sufficient  to  prove  that  the  offence 
here  charged  is  not  an  indictable  offence.  But  besides  these,  my 
brother  JDenison  informs  me  of  another  case,  that  has  not  been 
mentioned  at  the  bar.  It  was  M.  6  G.  1.  B.  R.  Rex  v.  Wilders,  a 
brewer.  He  was  indicted  for  a  cheat  in  sending  in  to  Mr.  Hicks,  an 
ale-house  keeper,  so  many  vessels  of  ale  marked  as  containing  such  a 
measure,  and  writing  a  letter  to  Mr.  Hicks,  assuring  him  that  the}-  did 
contain  that  measure,  when  in  fact  they  did  not  contain  such  measure, 
but  so  much  less,  &c.  This  indictment  was  quashed  on  argument, 
upon  a  motion,  which  is  a  stronger  case  than  the  present. 

Therefore  the  law  is  clearly  established  and  settled  ;  and  I  think  on 
right  grounds  ;  but  on  whatever  grounds  it  might  have  been  originally 
established,  yet  it  ought  to  be  adhered  to,  after  it  is  established  and 
settled. 

Therefore  (though  I  ma^'  be  sorr}'  for  it  in  the  present  case,  as 
circumstanced)  the  judgment  must  be  arrested. 

Mr.  Just.  Denison  concurred  with  his  Lordship. 

This  is  nothing  moie  than  an  action  upon  the  case  turned  into  an 
indictment.  'T  is  a  private  breach  of  contract.  And  if  this  were  to  be 
allowed  of,  it  would  alter  the  course  of  the  law,  by  making  the  injured 
person  a  witness  upon  the  indictment,  which  he  could  not  be  (for  him- 
self) in  an  action. 

Here  are  no  false  weights,  nor  false  measures,  nor  any  false  token 
at  all,  nor  an}'  conspiracy'. 

In  the  case  of  the  Queen  v.  Maccarty  et  al.,  6  Mod.  301,  2  Ld.  Raym. 
1179,  there  were  false  tokens,  or  what  was  considered  as  such.  In  the 
case  of  the  Queen  u.  Jones,  1  Salk.  379,  2  Ld.  Raym.  1013,  6  Mod. 
105,  the  defendant  had  received  £20,  pretending  to  be  sent  by  one  who 
did  not  send  him.  Et  per  Our. :  "  It  is  not  indictable,  unless  he  came 
with  false  tokens.  We  are  not  to  indict  one  man  for  making  a  fool  of 
another  ;  let  him  bring  his  action." 

If  there  be  false  tokens,  or  a  conspirac}',  it  is  another  case.  The 
Queen  v.  Maccart}'  was  a  conspiracy,  as  well  as  false  tokens.  Rex  v. 
Wilders  was  a  much  stronger  case  than  this,  and  was  well  considered. 
That  was  an  imposition  in  the  course  of  his  trade,  and  the  man  had 
marked  the  vessels  as  containing  more  gallons  than  the}'  did  really 
contain,  and  had  written  a  letter  to  Mr.  Hicks,  attesting  that  they 
did  so. 

But  the  present  case  is  no  more  than  a  mere  breach  of  contract :  he 
has  not  delivered  the  quantity  which  he  undertook  to  deliver. 

The  Court  use  a  discretion  in  quashing  indictments  on  motion,  but 
they  are  obliged  to  arrest  judgment  when  the  matter  is  not  indictable. 
And  this  matter  is  not  indictable,  therefore  the  judgment  ought  to  be 
arrested. 


80  KEX  V.    WHEATLY.  ^CHAP.  II. 

Mr.  Just.  Foster.  We  are  obliged  to  follow  settled  and  established 
rules  already  fixed  b}-  former  determinations  in  cases  of  the  same  kind. 

The  ease  of  Rex  v.  Wilders  was  a  strong  case,  —  too  strong,  perhaps, 
for  there  were  false  tokens  ;  the  vessels  were  marked  as  containing  a 
greater  quantity  than  they  reall}^  did. 

Mr.  Just.  WiLMOT  concurred.  This  matter  has  been  fully  settled 
and  established,  and  upon  a  reasonable  foot.  The  true  distinction  that 
ought  to  be  attended  to  in  all  cases  of  this  kind,  and  which  will  solve 
them  all,  is  this,  —  That  in  such  impositions  or  deceits,  where  common 
prudence  ma}'  guard  persons  against  the  suffering  from  them,  the 
offence  is  not  indictable,  but  the  party  is  left  to  his  civil  remedy  for  the 
redress  of  the  injur}-  that  has  been  done  him  ;  but  where  false  weights 
and  measures  are  used,  or  false  tokens  produced,  or  such  methods 
taken  to  cheat  and  deceive  as  people  cannot,  by  any  ordinarj' 
care  or  prudence,  be  guarded  against,  there  it  is  an  offence  indictable. 

In  the  case  of  Rex  v.  Pinkney,  P.  6  G.  2  B.  R.,  upon  an  indictment 
"  for  selling  a  sack  of  corn  (at  Rippon  market)  which  he  falsely 
affirmed  to  contain  a  Winchester  bushel,  ubi  reverd  et  iiifacto  pluriinum. 
deficiebat^  c&c,"  the  indictment  was  quashed  upon  motion. 

In  the  case  now  before  us,  the  prosecutor  might  have  measured  the 
liquor  before  he  accepted  it,  and  it  was  his  own  indolence  and 
negligence  if  he  did  not.  Therefore  common  prudence  might  have 
guarded  him  against  suflering  an}-  inconvenience  b}'  the  defendant's 
offering  him  less  than  he  had  contracted  for. 

This  was  the  case  of  Rex  v.  Pinkne}' ;  and  it  was  there  said.  That 
if  a  shop-keeper  who  deals  in  cloth  pretends  to  sell  ten  3'ards  of  cloth, 
but  instead  of  ten  yards  bought  of  him,  delivers  only  six,  j'et  the 
buyer  cannot  indict  him  for  delivering  only  six ;  because  he  might 
have  measured  it,  and  seen  whether  it  held  out  as  it  ought  to  do,  or 
not.  In  this  case  of  Rex  v.  Pinkney,  and  also  in  the  case  of  Rex  v. 
Combrun,  a  case  of  Rex  v.  Nicholson,  at  the  sittings  before  Lord 
Raymond  after  Michaelmas  term,  4  G.  2,  was  mentioned;  which  was 
an  indictment  for  selling  six  chaldron  of  coals,  which  ought  to  contain 
thirtj'-six  bushels  each,  and  delivering  six  bushels  short.  Lord  Ray- 
mond was  so  clear  in  it  that  he  ordered  the  defendant  to  be  acquitted. 

Per  Cur.  unanimousl}-, 

The  judgment  must  be  arrested.^ 

1  See  Rex  v.  Osborn,  3  Burr.  1697;  Com.  v.  Warren,  6  Mass.  72.  —  Ed. 


SECT.  III.]  COMMONWEALTH   V.   ECKERT.  81 

SECTION  IIL 

Public  Torts. 


COMMONAVEALTH  v.  ECKERT. 
CouKT  OF  Quarter  Sessions,  Pennsylvania,  1812. 

[Reported  2  Browne,  249. | 

The  defendant  was  indicted  for  a  misdemeanor,  in  cutting  and 
deadening  a  black-walnut  tree,  on  the  common,  or  public  ground, 
adjoining  the  village  of  Hanover,  the  propert}'  of  which  was  vested  in 
certain  trustees,  for  the  use  of  the  inhabitants  of  said  town,  by  deed 
from  the  original  owner  of  the  land. 

Bowie^  for  the  defendant.  It  is  a  rule  in  morality,  as  well  as  in 
charity,  to  apply  an  innocent  motive,  rather  than  a  malicious  one,  to 
have  actuated  the  defendant.  A  crime  or  misdemeanor  indictable, 
must  be  a  violation  of  some  known  public  law.  4  Bl.  Com.  5  ;  1  Hawk. 
P.  C.  366,  7,  sect.  1.  Act  of  Assembly  against  taking  off  or  breaking 
knockers  on  doors,  spouts,  &c.,  breaking  down  or  destroying  signs, 
&c.  Read  Dig.  7,  Act  of  1772.  These  were  offences  not  indictable 
at  common  law;  and  therefore  the  necessity  of  the  statute.  A  number 
of  cases  of  a  private  nature  are  not  indictable.  2  Hawk.  P.  C.  301. 
Such  as  breaking  closes,  &c.  3  Burr.  1698.  Cases  that  apply  to  indi- 
viduals or  to  a  parish  are  not  indictable,  and  there  is  no  difference  in 
this  case  from  that  of  six,  eight,  or  ten  tenants  in  common  of  a  prop- 
erty ;  and  one  of  the  number  cutting  a  tree,  an  indictment  could  not  be 
supported  against  him  that  did  the  act. 

Per  Curiam,  Franklin,  President,  to  the  jury  ;  — 

The  defendant  is  charged  with  a  misdemeanor,  in  cutting  and  dead- 
ening a  black-walnut  tree,  standing  on  public  ground  adjoining  the 
town  of  Hanover,  which  ground  appears  to  be  vested  by  deed  in  cer- 
tain trustees,  for  the  use  and  benefit  of  all  the  inhabitants  of  said 
town.  This  tree  was  kept  and  appropriated,  by  the  people  of  that 
place,  for  shade  and  ornament. 

The  doctrine  on  subjects  of  this  kind  is  well  laid  down  by  the  late 
Chief  Justice  McKean.  1  Dall.  335.  Whatever  amounts  to  a  public 
wrong,  as  killing  a  horse,  poisoning  chickens,  and  the  like,  is  the  sub- 
ject of  an  indictment  for  a  misdemeanor. 

Malice  forms  the  guilt  of  the  indictment.  Any  evil  design,  proceed- 
ing from  a  depraved  or  wicked  heart. 

If  you  should  consider  the  tree  was  useful  for  public  convenience, 
ornament,  and  shade  (which  we  think  has  been  fully  proved),  you  may 
convict  the  defendant ;  if  not,  acquit  him.^  Verdict^  Guilty. 

1  See  Resp.  v.  Powell,  1  Dall.  (Pa. J  47. 


82  REX   V.    RICHARDS.  [chap.  IL 


REX   V.   RICHARDS. 

King's  Bench.     1800. 

[Reported  8  T.  R.  634.] 

This  was  an  indictment  against  the  defendants  for  not  repairing 
a  road.  Tlie  indictment  stated  that  by  virtue  of  an  act  of  parliament, 
31  Geo.  3.,  intitled  "  an  act  for  draining  and  dividing  a  certain  moor 
or  tract  of  waste  land  called  King's  sedgmore  in  the  county  of  Somer- 
set" it  was  enacted  that  certain  commissioners  therein  named  should 
before  making  any  allotments  of  the  said  moor  set  out  and  appoint  such 
private  roads  and  drove-ways  over  the  same  as  in  the  judgment  of  the 
said  commissioners  should  be  necessary  and  convenient ;  and  that  all 
private  roads  and  ways  so  to  be  set  out  should  be  made  and  repaired 
at  the  expense  of  all  or  any  of  the  persons  interested  in  the  said  moor 
and  in  such  manner  as  the  said  commissioners  should  direct;  that 
certain  commissioners  under  the  act  in  execution  of  the  powers  thereby 
vested  in  them  by  their  award  set  out  and  appointed  a  certain  private 
road  and  drove-way  in  over  and  upon  the  said  moor  to  be  a  private 
road  and  drove-way  to  be  called  Henley  Drove-way  (describing  it)  ; 
that  the  said  commissioners  also  awarded  that  the  said  drove-way 
should  be  for  the  benefit  use  and  enjoyment  of  the  several  owners 
tenants  and  occupiers  for  the  time  beiug  of  all  and  singular  the  tene- 
ments in  the  several  parishes  or  hamlets  of  Highham  Lowham  Aller 
Pitney  Long  Sutton  Huish  Episcopi  Butleigh  Ashcott  and  Greinton  in 
the  said  county  in  respect  wliereof  and  of  the  rights  of  common 
severally  appurtenant  thereto  the  divisions  and  allotments  of  the  said 
moor  were  thereby  assigned  and  allotted  unto  the  same  parishes  or 
hamlets  respectively;  that  the  said  commissioners  thereb}'  ordered  and 
directed  that  the  said  drove-way  should  for  ever  thereafter  be  repaired 
b}'  the  several  owners  tenants  and  occupiers  for  the  time  being  of  all 
and  singular  the  tenements  in  the  several  parishes  or  hamlets  of  High- 
bam  Lowham  Aller  Pitne}'  Long  Sutton  and  Huish  Episcopi  in  respect 
whereof  and  of  the  rights  of  common  severall}'  appurtenant  thereto  the 
divisions  and  allotments  of  the  moor  were  thereby  assigned  and  allotted 
unto  the  same  parishes  or  hamlets  respectively  in  equal  shares  and  pro- 
portions, when  and  so  often  as  need  should  be  &c  ;  by  reason  whereof 
the  said  private  road  and  drove-wa}'  became  and  was  a  private  road 
and  drove-way  for  the  purposes  above  mentioned,  and  by  virtue  of  the 
said  act  and  of  the  said  award  liable  for  ever  hereafter  to  be  from  time 
to  time  amended  and  kept  in  repair  in  the  manner  and  by  the  means 
aforesaid  ;  that  on  &c.  the  said  waj',  called  Henley  Drove- Wa}-,  was 
ruinous  and  in  decay  for  want  of  needful  reparation  thereof;  that 
J.  Richards  late  of  Highham,  and  the  five  other  defendants,  (describ- 
ing them  respectively  as  of  the  parishes  of  Lowham,  Aller,  Pitney, 
Long  Sutton,  and  Huish  Episcopi)  being  severallj'  and  respectively 
owners   tenants   and   occupiers  of    certain  tenements   in  the   seyeral 


SECT.  III.]  REX   V.   EICIIARDS.  83 

parishes  or  hamlets  of  Highham  Lowham  Aller  Pitney  Long  Sutton 
and  Huish  Episcopi,  in  respect  whereof  and  of  the  rights  of  common 
several!}-  appurtenant  thereto  the  divisions  and  allotments  of  the  said 
moor  were  thereby  assigned  unto  the  same  parishes  or  hamlets,  and 
being  persons  interested  in  the  said  moor,  and  by  virtue  of  the  premises 
liable  to  keep  in  repair  and  amend  the  said  drove-way,  had  not  duly 
repaired  and  amended  the  same  &c.  The  defendants  pleaded  not 
guilty;  and  on  the  trial  at  the  last  assizes  at  Bridgewater  before 
]Mr.  Justice  Grose  the  jury  found  a  special  verdict.^  When  this  case 
was  called  on  in  the  paper  for  argument,  The  Court  asked  the  prose- 
cutor's counsel  on  what  ground  it  could  be  contended  that  this  was  an 
indictable  offence,  the  road  in  question  being  only  a  private  road? 

Praed^  for  the  prosecutor,  answered  that  this  though  a  private  road 
was  set  out  by  virtue  of  a  public  act  of  parliament,  under  which  the 
defendants  were  directed  to  repair  it ;  that  consequently  the  not  repair- 
ing was  a  disobedience  of  a  public  statute,  and  therefore  the  subject 
of  an  indictment.  That  this  might  be  considered  to  a  certain  degree 
as  concerning  the  public ;  that  even  "  a  private  act  of  parliament  may 
oe  given  in  evidence  without  comparing  it  with  the  record,  if  it  con- 
cern a  whole  county,  as  the  act  of  Bedford  Levels."  12  Mod.  216. 
And  that  there  was  no  other  remedy  than  the  present,  because  it 
appeared  by  the  specia\  verdict  that  there  were  no  less  than  two 
hundred  and  fifty  persons  who  were  liable  to  the  repair  of  this  road, 
and  that  the  difficulty  of  suing  so  many  persons  together  was  almost 
insuperable. 

But  the  Court  interposed,  and  said  that,  however  convenient  it 
might  be  that  the  defendants  should  be  indicted,  there  was  no  legal 
ground  on  which  this  indictment  could  be  supported.  That  the  known 
rule  was  that  those  matters  only  that  concerned  the  public  were  the 
subject  of  an  indictment.  That  the  road  in  question  being  described 
to  be  a  private  road  did  not  concern  the  pubUc,  nor  was  of  a  public 
nature,  but  merely  concerned  the  individuals  who  had  a  right  to  use  it. 
That  the  question  was  not  varied  by  the  circumstance  that  many  indi- 
viduals were  liable  to  repair,  or  that  many  others  were  entitled  to  the 
benefit  of  it ;  that  each  party  injured  might  bring  his  action  against 
those  on  whom  the  duty  was  thrown.  That  the  circumstance  of  this 
road  having  been  set  out  under  a  public  act  of  parliament  did  not  make 
the  non-repair  of  it  an  indictable  offence  ;  that  many  public  acts  are 
passed  which  regulate  private  rights,  but  that  it  never  was  conceived 
that  an  indictment  lay  on  that  account  for  an  infringement  of  such 
rights.  That  here  the  act  was  passed  for  a  private  purpose,  that  of 
dividing  and  allotting  the  estates  of  certain  individuals.  That  even 
if  it  were  true  that  there  was  no  remedy  by  action  the  consequence 
would  not  follow  that  an  indictment  could  be  supported  ;  but  that 
in  truth  the  parties  injured  had  another  legal  remedy. 

Judgment  for  the  defendants. 
*  The  special  verdict  is  omitted.  —  Ed. 


84  COMMONWEALTH    V.    KING.  [CHAP.  IL 


COMMONWEALTH   v.    KING. 

Supreme  Judicial  Court  of  Massachusetts.     1847. 

[Reported  13  Met.  115.] 

The  indictrnent,  in  this  case,  alleged  that  there  was  a  common  and 
public  highwa\-  in  the  town  of  Sutton,  called  the  Old  Central  Turnpike, 
and  that  the  defendant,  on  the  1st  of  August  1846,  "did  unlawfully 
and  injuriously  put,  place,  lay  and  continue  a  large  quantity  of  stones, 
in  and  upon  a  part  of  said  highwa}',  to  wit,  upon  a  space  thereof  ten 
rods  long  and  one  rod  wide,  and  the  said  stones,  so  placed  as  aforesaid, 
he  the  said  Wm.  King,  from  said  first  day  of  August,  until  the  finding 
of  this  bill,  unlawfull}'  and  injuriousl}'  did  keep,  continue  and  maintain, 
in  and  upon  said  highway,  whereby  the  same  has  been,  during  all  the 
time  aforesaid,  and  still  is,  greatly  narrowed,  obstructed  and  stopped 
up,"  &c.  "against  the  peace,"  &c.  "and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided."  ^ 

Dewey,  J.  .  .  .  The  next  enquiry  is,  whether  the  facts  alleged  con- 
stitute an  offence  at  common  law.  Upon  this  point  we  have  no  doubt. 
By  the  location  of  a  public  highway,  with  certain  defined  exterior  limits, 
the  public  acquire  an  easement  coextensive  witli  the  limits  of  such 
highway-.  Whoever  obstructs  the  full  enjoyment  of  that  easement,  b}^ 
making  deposits,  within  such  limits  of  the  located  highway,  of  timber, 
stones  or  other  things,  to  remain  there  and  occupy  a  portion  of  such 
public  highway,  is  guilt}'  of  a  nuisance  at  common  law. 

It  was  contended  by  the  counsel  for  the  defendant,  that  the  rights  of 
the  public  are  confined  exclusively  to  the  made  or  travelled  road,  or  to 
that  part  which  might  be  safely  and  properly  used  for  travelling ;  and 
that  a  deposit  of  timber,  stones  or  other  articles,  upon  a  part  of  the 
Ipcated  highway,  which,  from  its  want  of  adaptation  to  use  for  travel, 
could  not  be  thus  enjoyed,  —  as  a  portion  of  the  way  on  which  there 
was  a  high  bank,  or  a  deep  ravine,  —  would  not  subject  the  party  to  an 
indictment  for  a  nuisance  upon  the  highway.  This  principle  is  sup- 
posed to  be  sanctioned  by  the  decisions  of  this  court  in  reference  to  the 
rights  of  travellers,  holding  that  such  travellers  are  to  use  the  travelled 
or  made  road,  and  that  if  such  road  is  of  suitable  width,  and  kept  in 
proper  repair,  the  town  may  have  fully  discharged  its  duty,  although 
it  has  not  made  and  kept  in  repair  a  road  of  the  entire  width  of  the 
located  highway.  But  there  is  a  manifest  distinction  between  the  two 
cases.  In  the  case  supposed,  the  traveller  has  all  the  benefits  of  a 
public  way  secured  to  him.  He  only  requires  a  road  of  proper  width, 
and  kept  in  good  repair.  But  the  town,  on  the  other  hand,  to  enable 
itself  to  discharge  its  obligation  to  the  public,  requires  the  full  and 

1  Only  so  much  of  the  case  as  involves  the  question  of  a  nuisance  at  common  law 
is  given.  —  Ed. 


SECT.  III.]  PEOPLE    V.    KUGGLES.  85 

entire  use  of  the  whole  located  highway.  The  space  between  the  made 
road  and  the  exterior  limits  of  the  located  highwa}-  may  be  required 
for  various  purposes  ;  as  for  making  and  keeping  in  repair  the  travelled 
path  ;  for  making  sluices  and  water-courses  ;  for  furnishing  earth  to 
raise  the  road.  And,  not  unfrequently,  from  the  location  of  the  road 
and  from  its  exposure  to  be  obstructed  by  snow,  the  entire  width  of 
the  located  road  is  required  to  be  kept  open,  to  guard  against  accumu- 
lations of  snow  that  might  otherwise  wholly  obstruct  tlie  public  travel 
at  such  seasons.  For  these  and  other  uses,  in  aid  of  what  is  the  lead- 
ing object,  the  keeping  in  good  repair  of  the  made  or  travelled  road, 
the  general  easement  in  the  public,  acquired  by  the  location  of  a  high- 
way', is  coextensive  with  the  exterior  limits  of  the  located  higliwa}' ; 
and  the  question  of  nuisance  or  no  nuisance  does  not  depend  upon  the 
fact,  whether  that  part  of  the  iiigliway,  which  is  alleged  to  have  been 
unlawfully  entered  upon  and  obstructed  by  the  defendant,  was  a  portion 
of  the  highway  capable  of  being  used  by  the  traveller.  Whether  it  be 
so  or  not,  an  entry  upon  the  located  highway,  and  occupation  of  any 
portion  of  it  by  deposits  of  lumber,  stones,  &c.,  would  be  a  nuisance, 
and  subject  the  party  to  an  indictment  therefor.^ 


PEOPLE  V.  RUGGLES. 
Supreme  Court  of  New  York.     1811. 

[Reported  8  Johns.  290.] 

Indictment  for  blasphem}'.  After  conviction  the  record  was  removed 
to  the  Supreme  Court.  Wendell,  for  the  prisoner,  now  contended  that 
the  offence  charged  in  the  indictment  was  not  punishable  by  the  law  of 
this  state,  though,  he  admitted,  it  was  punishable  by  the  common  law 
of  England,  where  Christianity  makes  part  of  the  law  of  the  land,  on 
account  of  its  connection  with  the  established  church.^ 

Kent,  C.  J.  And  why  should  not  the  language  contained  in  the 
indictment  be  still  an  offence  with  us?  There  is  nothing  in  our  man- 
ners or  institutions  which  has  prevented  the  application  or  the  necessity 
of  this  part  of  the  common  law.  We  stand  equally  in  need,  now  as 
formerly,  of  all  that  moral  discipline,  and  of  those  principles  of  virtue, 
which  help  to  bind  society  together.  The  people  of  this  state,  in  com- 
mon with  the  people  of  this  country,  profess  the  general  doctrines  of 
Christianitj',  as  the  rule  of  their  faith  and  practice  ;  and  to  scandalize 
the  author  of  these  doctrines  is  not  onh',  in  a  rehgious  point  of  view, 
extremely  impious,  but,  even  in  respect  to  the  obligations  due  to  soci- 

1  See  Hall's  Case,  1  Mod.  76  ;  State  v.  Peckard,  5  Harr.  (Del.)  500 ;  State  v.  Use- 
fnl  Manufactures  Society,  44  N.  J.  Law  502  ;  People  v.  Cunningham,  1  Den.  (N.  Y.) 
524. 

'  This  short  statement  is  substituted  for  that  of  the  reporter.  Only  so  much  of  the 
opinion  is  giren  as  discusses  the  argument  above  advanced.  —  Ed. 


86  PEOPLE    V.    RDGGLES.  [CHAP.  II. 

ety,  is  a  gross  violation  of  decency  and  good  order.  Nothing  could  be 
more  offensive  to  the  virtuous  part  of  the  community,  or  more  injurious 
to  the  tender  morals  of  the  young,  than  to  declare  such  profanity  law- 
ful. It  would  go  to  confound  all  distinction  between  things  sacred  and 
profane  ;  for  to  use  the  words  of  one  of  the  greatest  oracles  of  human 
wisdom,  "  profane  scoffing  doth  by  little  and  little  deface  the  reverence 
for  religion;"  and  who  adds,  in  another  place,  "two  principal  causes 
have  I  ever  known  of  atheism,  —  curious  controversies  and  profane 
scoffing."  (Lord  Bacon's  Works,  vol.  ii,  291,  503.)  Things  which 
corrupt  moral  sentiment,  as  obscene  actions,  prints  and  writings,  and 
even  gross  instances  of  seduction,  have,  upon  the  same  principle,  been 
held  indictable  ;  and  shall  we  form  an  exception  in  these  particulars  to 
the  rest  of  the  civilized  world?  No  government  among  any  of  the 
polished  nations  of  antiquity,  and  none  of  the  institutions  of  modern 
Europe  (a  single  and  monitory  case  excepted),  ever  hazarded  such  a 
bold  experiment  upon  the  solidity  of  the  public  morals,  as  to  permit 
with  impunit}',  and  under  the  sanction  of  their  tribunals,  the  general 
religion  of  the  community  to  be  openly  insulted  and  defamed.  The 
very  idea  of  jurisprudence  with  the  ancient  lawgivers  and  philosophers 
embraced  the  religion  of  the  country.  Jurlsprudentia  est  divinarum 
atque  humaiinrum  rermn  notitia.  (Dig.  b.  1.  10.  2.  Cic.  De  Legibus, 
b.  2.  passi7n.) 

The  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion, 
whatever  it  may  be,  and  free  and  decent  discussions  on  any  religious 
subject,  is  granted  and  secured  ;  but  to  revile,  with  malicious  and  blas- 
phemous contempt,  the  religion  professed  by  almost  the  whole  commu- 
nity, is  an  abuse  of  that  right.  Nor  are  we  bound,  by  any  expressions 
in  the  constitution,  as  some  have  strangely  supposed,  either  not  to 
punish  at  all,  or  to  punish  indiscriminately  the  like  attacks  upon  the 
religion  of  Mahomet  or  of  the  grand  Lama  ;  and  for  this  plain  reason, 
that  the  case  assumes  that  we  are  a  Christian  people,  and  the  morality 
of  the  country  is  deeply  ingrafted  upon  Christianity,  and  not  upon  the 
doctrines  or  worship  of  those  impostors.  Besides,  the  offence  is  crimen 
malitice,  and  the  imputation  of  malice  could  not  be  inferred  from  any 
Invectives  upon  superstitions  equally  false  and  unknown.  We  are  not 
to  be  restrained  from  animadversion  upon  offences  against  public  de- 
cency, like  those  committed  by  Sir  Charles  Sedley  (1  Sid.  168),  or  by 
one  RoUo  (Sayer,  158),  merely  because  there  may  be  savage  tribes,  and 
perhaps  semi-barbarous  nations,  whose  sense  of  shame  would  not  be 
affected  by  what  we  should  consider  the  most  audacious  outrages  upon 
decorum.  It  is  suflScient  that  the  common  law  checks  upon  words  and 
actions,  dangerous  to  the  public  welfare,  apply  to  our  case,  and  are 
suited  to  the  condition  of  this  and  every  other  people  whose  manners 
are  refined,  and  whose  morals  have  been  elevated  and  inspired  with  a 
more  enlarged  benevolence,  by  means  of  the  Christian  religion.^ 

1  Ace.  Updegraph  v.  Com.,  11  S.  &R.  (Pa.)  394.  — Ed. 


SECT.  Ill]  STATE    V.    LINKIIAW.  87 

REGINA   V.    BRAD  LAUGH. 

ASSIZES. 

[Reported  15  Cox  C.  C.  217.] 

Lord  Coleridge,  C.  J.'  .  .  .  .  But  I  have  told  30U  that,  with  re- 
gard to  these  libels,  they  are,  in  my  judgment,  in  an}-  view  of  the  law, 
blasphemous  libels.  It  is  not  merel}-  that  the}-  asperse  the  doctrine  of 
Christianity  ;  it  is  not  merely  that  they  question  particular  portions  of 
the  Hebrew  Scriptures.  I  should  suppose  that  there  are  few  reasoning, 
thoughtful  men  to  whom  the  character  of  David  and  the  acts  of  Jehu 
may  not  have  occasioned  considerable  question ;  and  to  find  them  rep- 
resented as  approved  by  an  all-pure  and  all-merciful  God  may  and  must 
have  raised  very  strong  doubts.  And  if  these  things  were  argued 
with  due  gravity  and  propriety,  I  for  one  would  never  be  a  part}-,  unless 
the  law  were  clear,  to  saying  to  any  man  who  put  forward  his  views  on 
those  most  sacred  things,  that  he  should  be  branded  as  apparently 
criminal  because  he  differed  from  the  majority  of  mankind  in  his  relig- 
ious views  or  convictions  on  the  subject  of  religion.  If  that  were  so, 
we  should  get  into  ages  and  times  which,  thank  God,  we  do  not  live  in, 
when  people  were  put  to  death  for  opinions  and  beliefs  which  now  al- 
most all  of  us  believe  to  be  true.  It  is  not  a  question  of  that  sort  at  all. 
It  is  a  question,  first  of  all,  whether  these  things  are  not  in  any  point 
of  view  blasphemous  libels,  whether  the}'  are  not  calculated  and  intended 
to  insult  the  feelings  and  the  deepest  religious  convictions  of  the  great 
majority  of  the  persons  amongt  whom  we  live  ;  and  if  so,  the}*  are  not 
to  be  tolerated  an}-  more  than  other  nuisance  is  tolerated.  "We  must 
not  do  things  that  are  outrageous  to  the  general  feeling  of  propriety 
among  the  persons  amongst  whom  we  live. 


STATE  V.  LINKHAW. 
Supreme  Court  of  North  Carolina.     1873. 

[Reported  69  N.  C.  214.] 

Settle,  J.  The  defendant  is  indicted  for  disturbing  a  congic- 
gation  while  engaged  in  divine  worship,  and  the  disturbance  is 
alleged  to  consist  in  his  singing,  which  is  described  to  be  so  peculiar 
as  to  excite  mirth  in  one  portion  of  the  congregation  and  indigna- 
tion in  the  other. 

From   the   evidence   reporteil    by  his  honor  who   presided  at   the 

*  An  extract  from  the  charge  only  is  given.  —  Ed. 


88  1!EX    V.    LYNN.  [chap.  II. 

trial,  it  appears  that  at  the  end  of  each  verse  his  voice  is  heard 
After  all  the  other  singers  have  ceased,  and  that  the  disturbance  is 
decided  and  serious ;  that  the  church  members  and  authorities 
expostulated  with  the  defendant  about  his  singing  and  the  disturb- 
ance growing  out  of  it;  to  all  of  which  he  replied  "that  he  would 
worship  his  God,  and  that  as  a  part  of  his  worship  it  was  his  duty 
to  sing."  It  was  further  in  evidence  that  the  defendant  is  a  strict 
member  of  the  church,  and  a  man  of  most  exemplary  deportment. 

"  It  was  not  contended  by  the  State  upon  the  evidence  that  he 
had  any  intention  or  purpose  to  disturb  the  congregation  ;  but  on  the 
contrary,  it  was  admitted  that  he  was  conscientiously  taking  part  in 
the  religious  services." 

This  admission  by  the  State  puts  an  end  to  the  prosecution.  It  is 
true,  as  said  In-  his  honor,  that  a  man  is  generally  presumed  to  intend 
consequences  of  his  acts,  but  here  the  presumption  is  rebutted  by  a  fact 
admitted  by  the  State. 

Ifc  would  seem  that  the  defendant  is  a  proper  subject  for  the  disci- 
pline of  his  church,  but  not  for  the  discipline  of  the  courts. 

Venire  de  novo.^ 


REX   V.  LYNN. 
King's  Bench.     1789. 

[Reported  Leach  {4th  ed.),  497.] 

Lynn  had  been  convicted  of  a  misdemeanor  on  an  indictment  which 
charged  that  he,  on  such  a  da}-,  had  entered  a  certain  burying-ground, 
and  taken  from  a  coffin  buried  in  the  earth  a  dead  bodj-  for  the  purpose 
of  dissection. 

In  Michaelmas  Term,  1789,  it  was  moved  in  the  Court  of  King's 
Bench  in  arrest  of  the  judgment,  that  this  was  an  offence  of  ecclesiastical 
cognizance,  and  not  indictable  in  any  court  of  criminal  jurisdiction  at 
the  common  law.  But  by  the  Court,  the  office  is  cognizable  in  a 
criminal  court,  as  highlj-  indecent,  and  contra  bonos  mores;  and  the 
circumstance  of  its  being  for  the  purposes  of  dissection  does  not  make 
it  a  less  indictable  offence. 

The  defendant,  on  the  probability  of  his  having  committed  this  crime 
merely  from  ignorance,  was  only  fined  five  marks.  ^ 

1  See  State  v.  Jasper,  4  Dev.  (N.  C.)  323. 

*  See  Reg.  v.  Jacobson,  14  Cox,  C.  C.  522.  —  Ed. 


SECT.  III.]  KANAVAN'S   CASK.  89 


KANAVAN'S   CASE. 
Supreme  Judicial  Court  of  Maine.     1821. 

[Reported  1  Greenleaf,  22fi.] 

The  second  count  stated  that  the  defendant  unlawfully  and  indecentlv 
took  the  bod}'  of  [a]  child  and  threw  it  into  the  river,  against  common 
decenc}',  &c} 

The  defendant  being  convicted  on  the  second  count,  a  motion  was 
made  in  arrest  of  judgment,  on  the  ground  that  the  offence  charged  was 
not  indictable  at  common  law. 

By  the  Court.  We  have  no  doubt  upon  this  subject,  and  do  not 
hesitate  a  moment  to  pronounce  the  indictment  to  be  good  and  suffi- 
cient, and  that  there  must  be  sentence  against  the  prisoner. 

From  our  childhood  we  all  have  been  accustomed  to  pay  a  reveren- 
tial respect  to  the  sepulchres  of  our  fathers,  and  to  attach  a  character 
of  sacredness  to  the  grounds  dedicated  and  enclosed  as  the  cemeteries 
of  the  dead.  Hence,  before  the  late  statute  of  Massachusetts  was  en- 
acted, it  was  an  offence  at  common  law  to  dig  up  the  bodies  of  those 
who  had  been  buried  for  the  purpose  of  dissection.  It  is  an  outrage 
upon  the  public  feeUngs,  and  torturing  to  the  afflicted  relatives  of  the 
deceased.  If  it  be  a  crime  thus  to  disturb  the  ashes  of  the  dead,  it 
must  also  be  a  crime  to  deprive  them  of  a  decent  burial,  by  a  disgraceful 
exposure,  or  disposal  of  the  body  contrary  to  usages  so  long  sanctioned, 
and  which  are  so  grateful  to  the  wounded  hearts  of  friends  and  mourn- 
ers. If  a  dead  body  may  be  thrown  into  a  river,  it  ma}'  be  cast  into  a 
street ;  if  the  body  of  a  child,  so  the  bod}'  of  an  adult,  male  or  female. 
Good  morals,  decency,  our  best  feelings,  the  law  of  the  land,  —  all  for- 
bid such  proceedings.  It  is  imprudent  to  weaken  the  influence  of  tha*; 
sentiment  which  gives  solemnity  and  interest  to  everything  connected 
with  the  tomb. 

Our  funeral  rites  and  services  are  adapted  to  make  deep  impressions 
and  to  produce  the  best  effects.  The  disposition  to  perform  with  all 
possible  solemnity  the  funeral  obsequies  of  the  departed  is  universal  in 
our  country  ;  and  even  on  the  ocean,  where  the  usual  method  of  sepulture 
is  out  of  the  question,  the  occasion  is  marked  with  all  the  respect  which 
circumstances  will  admit.  Our  legislature,  also,  has  made  it  an  offence 
in  a  civil  officer  to  arrest  a  dead  body  by  any  process  in  his  hands 
against  the  party  while  living ;  it  is  an  affront  to  a  virtuous  and  decent 
public,  not  to  be  endured. 

It  is  to  be  hoped  that  punishment  in  this  instance  will  serve  to 
correct  any  mistaken  ideas  which  may  have  been  entertained  as  to 
the  nature  of  such  an  offence  as  this  of  which  the  prisoner  stands 
convicted. 


90  COMMONWEALTU   V.    SHARPLESS.  [CHAP.  II. 


COMMONWEALTH   v.   SHARPLESS. 
Supreme  Court  of  Pennsylvania.     1815. 

[Reported  2  Sergeant  <^-  Rawle,  91.] 

TiLGHMAN,  C.  J.*  This  is  an  indictment  against  Jesse  Sharpless 
and  others  for  exliibiting  an  indecent  picture  to  divers  persons  for 
money.  The  defendants  consented  that  a  verdict  should  go  against 
them,  and  afterwards  moved  in  arrest  of  judgment  for  several  reasons. 

1.  "That  the  matter  laid  in  the  indictment  is  not  an  indictable 
offence."  It  was  denied,  in  the  first  place,  that  even  a  public  exhibi- 
tion of  an  indecent  picture  was  indictable  ;  but  supposing  it  to  be  so, 
it  was  insisted  that  this  indictment  contained  no  charge  of  a  public 
exhibition.  In  England  there  are  some  acts  of  immorality,  such  as 
adultery,  of  which  the  ecclesiastical  courts  have  taken  cognizance  from 
very  ancient  times,  and  in  such  cases,  although  they  tended  to  the  cor- 
ruption of  the  public  morals,  the  temporal  courts  have  not  assumed 
jurisdiction.  This  occasioned  some  uncertainty  in  the  law  ;  some  dif- 
ficulty in  discriminating  between  the  offences  punishable  in  the  tem- 
poral and  ecclesiastical  courts.  Although  there  was  no  ground  for 
this  distinction  in  a  country  like  ours,  where  there  was  no  ecclesiastical 
jurisdiction,  yet  the  common  law  principle  was  supposed  to  be  in 
force,  and  to  get  rid  of  it  punishments  were  inflicted  by  act  of  assem- 
bly. There  is  no  act  punishing  the  offence  charged  against  the 
defendants,  and  therefore  the  case  must  be  decided  upon  the  prin- 
ciples of  the  common  law.  That  actions  of  public  indecency  were 
always  indictable,  as  tending  to  corrupt  the  public  morals,  I  can  have 
no  doubt;  because,  even  in  the  profligate  reign  of  Charles  II.,  Sir 
Charles  Sedley  was  punished  by  imprisonment  and  a  heavy  fine  for 
standing  naked  in  a  balcony  in  a  public  part  of  the  city  of  London. 
It  is  true  that,  besides  this  shameful  exhibition,  it  is  mentioned  in 
some  of  the  reports  of  that  case  that  he  threw  down  bottles  containing 
offensive  liquor  among  the  people  ;  but  we  have  the  highest  authority 
for  saying  that  the  most  criminal  part  of  his  conduct,  and  that  which 
principally  drew  upon  him  the  vengeance  of  tlie  law,  was  the  exposure 
of  his  person.  For  this  I  refer  to  the  opinion  of  the  judges  in  The 
Queen  v.  Curl,  2  Str.  792  ;  Lord  Mansfield,  in  The  King  v.  Sir  Francis 
Blake  Delaval,  &c.,  3  Burr.  14:38,  and  of  Blackstone,  in  the  4th  vol- 
ume of  his  Commentaries,  page  64.    Neither  is  there  any  doubt  that  the 

1  Part  of  this  opinion  only  is  given,     Yeates,  J.,  delivered  a  couourring  opinion. 


SECT.  III.]  COMMONWEALTH    V.    SHARPLESS.  91 

publication  of  an  indecent  book  is  indictable,  although  it  was  once 
doubted  by  the  Court  of  King's  Houch,  in  The  C^ueen  i\  Reed  (in  tlie 
sixth  year  of  Queen  Anne).  But  tlie  authority  of  that  case  was 
destroyed,  upon  great  consideration,  in  Tlie  King  y.  Curl  (1  George 
II.),  ^  iStr.  788.  The  law  was  in  Curl's  case  established  upon  true 
principles.  What  tended  to  corrupt  society  was  held  to  be  a  breach 
of  the  peace  and  punishable  by  indictment.  The  courts  are  guardians 
of  the  public  morals,  and  therefore  have  jurisdiction  in  such  cases. 
Hence  it  follows  that  an  offence  may  be  punishable  if  in  its  nature 
and  by  its  example  it  tends  to  the  corruption  of  morals,  although  it  be 
not  committed  in  public.  In  Tiie  King  v.  Delaval,  &c.,  there  was  a 
conspiracy,  and  for  that  reason  alone  the  court  had  jurisdiction  ;  yel 
Lord  Mansfield  expressed  his  opinion  that  tliey  would  have  had  juris- 
diction from  the  nature  of  the  offence,  which  was  the  seduction  of  a 
young  woman  under  the  age  of  twenty-one,  and  placing  her  in  the 
situation  of  a  kept  mistress,  under  the  pretence  of  binding  her  as  an 
apprentice  to  her  keeper  ;  and  he  cited  the  opinion  of  Lord  Hardwicke, 
who  ordered  an  information  to  l)e  filed  against  a  man  who  had  made  a 
formal  assignment  of  his  wife  to  another  person.  In  support  of  this 
we  find  an  indictment  in  Trem.  PI.  213  (The  King  y.  Dingley),  for 
seducing  a  married  woman  to  elope  from  her  husband.  Now,  to  apply 
these  principles  to  tiie  present  case.  The  defendants  are  charged 
with  exhibiting  and  showing  to  sundry  persons,  for  money,  a  lewd, 
scandalous,  and  obscene  painting.  A  picture  tends  to  excite  lust  as 
strongly  as  a  writing  ;  and  the  showing  of  a  picture  is  as  much  a  pub- 
lication as  the  selling  of  a  book.  Curl  was  convicted  of  selling  a 
book.  It  is  true,  the  indictment  charged  the  act  to  have  been  in  a  pub- 
lic shop,  but  that  can  make  no  difference.  The  mischief  was  no 
greater  tlian  if  lie  had  taken  the  purchaser  into  a  private  room  and 
sold  him  the  book  there.  The  law  is  not  to  be  evaded  by  an  artifice  of 
that  kind.  If  the  privacy  of  the  room  was  a  protection,  all  the  youth 
of  the  city  might  be  corrupted  by  talving  them  one  by  one  into  a 
chamber,  and  there  inflaming  their  passions  by  the  exhibition  of  las- 
civious pictures.  In  the  eye  of  the  law  this  would  be  a  publication, 
and  a  most  pernicious  one.  Then,  although  it  is  not  said  in  the 
indictment  in  express  terms  that  the  defendants  published  the  paint- 
ing, yet  the  averment  is  substantially  the  same,  that  is  to  say,  that 
they  exhibited  it  to  sundry  persons  for  money  ;  for  that  in  law  is  a 
publication. 

Motion  in  arrest  of  judgment  overruled,  and  judgment  on 
the  verdict.^ 

1  See  Reg.  v.  Grey,  4  F.  &  F.  73 ;  Reg.  v.  Saunders,  1  Q.  B.  D.  15 ;  Pifee  v.  Com, 
2  Duv.  (Ky.)  89.  —  Ed. 


92  REX   V.   DE  LAVAL.  [CHAP.  II. 


REX   V.  DELAVAL. 
King's  Bench.     1763. 

[Reported  3  Burrow,  1434.] 

Lord  Mansfield  now  delivered  the  opinion  of  the  court.^ 

This  is  a  motion  for  an  information  against  tlie  defendants  for  a 
conspiracy  to  put  this  young  girl  (an  apprentice  to  one  of  them)  into 
the  hands  of  a  gentleman  of  rank  and  fortune,  for  the  purpose  of 
prostitution  ;  contrar}'  to  deeenc}"  and  moralit}',  and  without  the  knowl- 
edge or  approbation  of  her  father,  who  prosecutes  them  for  it,  and  has 
now  cleared  himself  of  all  imputation,  and  appears  to  be  an  innocent 
and  an  injured  man. 

A  female  infant,  then  about  fifteen,  was  bound  apprentice  by  her 
father  to  the  defendant  Bates,  a  music-master ;  the  girl  appearing  to 
have  natural  talents  for  music.  The  father  became  bound  to  the 
master  in  the  penalty  of  £200  for  his  daughter's  performance  of  the 
covenants  contained  in  the  indenture.  She  became  eminent  for  vocal 
music  ;  and  thereby  gained  a  great  profit  to  Bates,  her  master.  During 
her  apprenticeship,  being  then  about  seventeen,  she  is  debauched  by 
Sir  Francis  Delaval,  whilst  she  resided  in  the  house  of  Bates'  father ; 
as  Bates  himself  was  a  single  man  and  no  housekeeper.  In  April  last, 
Bates,  her  master,  indirectly  assigns  her  to  Sir  Francis,  as  much  as  it 
was  in  his  power  to  assign  her  over ;  and  this  is  done,  plainly  and 
manifestly,  for  bad  purposes.  Bates  at  the  same  time  releases  the 
penalty  to  the  father,  but  without  the  father's  application  or  even 
privity,  and  receives  the  £200  from  Sir  Francis,  b}'  the  hands  of  his 
tailor,  who  is  emplo3'ed  to  pay  it  to  Bates,  and  also  enters  into  a  bond 
to  Bates  to  secure  to  him  the  profits  arising  from  the  girl's  singing  this 
summer  at  Marybone.  And  then  she  is  indentured  to  Sir  Francis 
Delaval  to  learn  music  of  him  ;  and  she  covenants  with  him,  both  in 
the  usual  covenants  of  indentures  of  apprenticeship,  and  likewise  in 
several  others  (as  "  not  to  quit  even  his  apartments "),  etc.  These 
articles  between  the  parties  are  signed  b}'  all  but  the  father,  and  a 
bond  is  drawn  from  him,  in  the  penalt}^  of  £200  for  his  daughter's  per- 
formance of  these  covenants  (which  he  never  executed).  And  the  girl 
goes  and  lives  and  still  does  live  with  Sir  Francis,  notoriously,  as  a 
kept  mistress. 

Thus  she  has  been  played  over,  b^*  Bates,  into  his  hands,  for  this 
purpose.  No  man  can  avoid  seeing  all  this  ;  let  him  wink  ever  so 
much. 

I  remember  a  cause  in  the  court  of  chancer}',  wherein  it  appeared 
that  a  man  had  formerly  assigned  his  wife  over  to  another  man,  and 
Lord  Hardwicke  directed  a  prosecution  for  that  transaction,  as  being 

^  Part  of  the  opinion  only  is  given. 


SECT.  III.J  REGINA    V.    BRANWOKTH.  93 

notoriously  and  grossly  against  public  decency  and  good  manners. 
And  so  is  the  present  case. 

It  is  true  that  many  offences  of  the  incontinent  kind  fall  properl}' 
under  the  jurisdiction  of  the  ecclesiastical  court,  and  are  a[)propri- 
ated  to  it.  But  if  you  except  those  appropriated  cases,  this  court  is 
the  custos  morum  of  the  people,  and  has  the  superintendency  of 
offences  contra  bonos  mores;  and  upon  this  ground  both  Sir  Charles 
Sedley  and  Curl,  who  had  been  guilty  of  offences  against  good  manners, 
were  prosecuted  here. 

However,  besides  this,  there  is,  in  the  present  case,  a  conspiracy 
and  confederacy  amongst  the  defendants,  which  are  clearly  and  indis- 
putabl}'  within  the  proper  jurisdiction  of  this  court. 

And  in  the  conspiracy  they  were  all  three  concerned. 

Therefore  let  the  rule  be  absolute  against  all  three.  ^ 


REGINA  V.  BRANWORTH. 

King's  Bench.     1704. 

[Reported  6  Mod.  240.] 

Indictment  by  a  jury  of  the  town  of  Portsmouth,  "  for  that  he, 
being  an  idle  person,  did  wander  in  the  said  town  selling  of  small 
wares  as  a  petit  chapman." 

To  maintain'  this  indictment  it  was  urged  that  a  petit  chapman  is  a 
vagabond  bj'  the  statute  of  39  Eliz.  c.  4.  ;  and  though  some  petit 
chapmen,  that  is,  such  as  are  legally  qualified  by  the  statute  of  8  &  9 
Will.  3,  25,  may  now  lawfully  use  that  occupation,  3'et  that  act  excepts 
boroughs  and  corporations,  so  that  as  to  them  they  remain  in  statu  quo. 

Holt,  Chief  Justice.  Is  a  vagabond  quatenus  such,  indictable?  It 
seems  not ;  for  at  common  law  a  man  might  go  where  he  would  ;  but  if 
he  be  an  idle  and  loose  person,  you  ma}'  take  him  up  as  a  vagrant,  and 
bind  him  to  his  good  behaviour  by  the  common  law  ;  and  bj-  the  Statute 
of  Labourers  he  may  be  compelled  to  serve.  There  is  indeed  a  way  by 
law  of  punishing  incorrigible  rogues,  by  burning  them  in  the  shoulder, 
and  sending  them  to  the  gallies  ;  from  whence  it  may  be  urged,  that 
there  must  be  a  way  before  of  convicting  them  of  being  rogues,  because 
they  cannot  otherwise  be  punished  as  incorrigible  rogues;  and  there- 
fore that  conviction  must  first  be  by  indictment. 

But  by  Holt,  Chief  Justice,  No  ;  but  by  being  judged  by  a  justice  of 
peace  to  be  a  vagrant,  and  used  by  him  as  such  ;  and  if  he  offend  again, 
he  may  be  indicted  as  a  common  vagrant. 

Rule  for  quashing  it  was  enlarged. 

1  See  Reg.  v.  Webb,  1  Den.  C.  C.  33S ;  Reg.  v.  Elliot.  L.  &  C.  103.  —  Ed, 


94  BAKER  V.    STATE.  [CHAP.  II. 


BAKER   V.  STATE. 

Supreme  Court  of  New  Jersey.     1890. 

[Reported  53  N.  J.  Law,  45.] 

Dixon,  J.^  The  plaintiff  in  error  was  convicted  in  the  Camden 
Quarter  Sessions  of  being  a  common  scold. 

One  ground  on  which  she  seeks  a  reversal  of  the  judgment  is  because 
the  indictment  does  not  state  the  particular  facts  which  make  a  com- 
mon scold.  But  it  is  not  necessary  that  the  indictment  should  be  so 
explicit.  It  is  enough  for  it  to  aver  that  the  accused  is  a  common 
scold,  to  the  common  nuisance,  etc.  Where  the  offence  consists,  not 
of  a  single  act,  but  of  a  habitual  course  of  conduct,  an  indictment  need 
not  charge  the  details  of  that  conduct,  which  aj-e  only  evidence  of  the 
misdemeanor,  but  must  charge  the  general  practice  which  constitutes 
the  crime  itself.  Hawk.,  bk.  2,  ch.  25,  §§  57,  59;  Commonwealth  v. 
Pray,  13  Pick.  359,  362  ;  Whart.  Cr.  PI.  &  Pr.,  §  155. 

Another  reason  urged  for  reversal  is,  that  the  court  charged  the  jury 
as  follows :  "  The  evidence  on  the  part  of  the  state  consists  of  a  number 
of  witnesses  who  have  sworn,  not  that  she  only  scolded  one  person  at 
one  time,  but  that  she  did  it  to  several  persons  on  several  occasions. 
Now,  if  you  believe  she  did  that  thing,  if  you  believe  the  evidence  on 
the  part  of  the  state,  she  is  guilty  of  being  a  common  nuisance  to  the 
neighborhood  in  which  she  resides." 

This  charge  did  not  correctly  point  out  to  the  jury  the  facts  required 
to  warrant  a  conviction,  nor  submit  to  their  judgment,  as  it  should,  the 
question  whether  such  facts  were  proved.  A  woman  does  not  neces- 
sarily become  a  common  scold  by  scolding  several  persons  on  several 
occasions.  It  is  the  habit  of  scolding,  resulting  in  a  public  nuisance, 
which  is  criminal ;  and  whether  the  scoldings  to  which  the  State's  wit- 
nesses testified  were  so  frequent  as  to  prove  the  existence  of  the  habit, 
and  whether  the  habit  was  indulged  under  such  circumstances  as  to 
disturb  the  public  peace,  were  questions  which  the  jury  alone  could 
lawfully  decide,  and  which  were  no  less  important  than  the  credibility 
of  witnesses.     Brown  v.  State,  20  Vroom  61."^ 

1  Part  of  the  opinion  is  omitted.  —  Ed. 

2  Ace.  Foxby's  Case,  6  Mod.  1 1  ;  Com.  v.  Mohn,  52  Pa.  243.  See  State  v.  Davis, 
139N.  C.  5^7. 


SECT.  III.]  KING   V.    PEOPLE.  95 

COMMONWEALTH   v.  SMITH. 

Supreme  Judicial  Court  of  Massachusetts.     1850. 

[Reported  6  Cush.  80.] 

The  defendants  were  tried  before  Mellen,  J.,  in  the  court  of  common 
pleas,  and  convicted,  on  a  complaint  originally  made  to  a  justice  of  the 
peace,  in  which  it  was  alleged  that  the  defendants,  on  the  17th  of  April, 
1850,  at  Grafton,  "  with  force  and  arms,  were  disturbers  and  breakers 
of  the  peace,  and  then  and  there  contriving  and  intending  to  disturb  the 
peace  of  said  commonwealth,  did,  in  one  of  the  public  streets  and  other 
public  places  of  said  town,  utter  loud  exclamations  and  outcries,  and 
other  loud  noises,  and  did  then  and  thereby  draw  together  a  number  of 
persons,  to  the  great  disturbance  of  divers  citizens,  in  evil  example 
to  all  others  in  like  cases  to  offend  against  good  morals,  against  the 
peace  of  said  commonwealth,  and  coutraiy  to  the  form  of  the  statutes 
in  such  case  made  and  provided." 

The  defendants  moved  in  arrest  of  judgment,  on  the  ground  that  no 
offence  was  set  forth  and  alleged  in  the  complaint.  The  motion  was 
overruled,   and  the  defendants  excepted. 

Dewey,  J.  The  judgment  in  this  case  must  be  arrested.  No  offence 
is  technically  charged  in  this  complaint.  The  "  disturbance  of  divers 
citizens  "  by  noises  in  the  public  streets  is  not  a  proper  setting  out  of 
the  offence  here  intended  to  l)e  charged.  If  the  acts  done  by  the  par- 
ties constitute  an}'  criminal  offence,  it  is  that  of  a  nuisance.  As  such 
it  ought  to  have  been  alleged  that  the  noises  made  hy  the  defendants 
were  to  the  great  damage  and  common  nuisance  of  all  the  citizens  of 
the  commonwealth  there  inhabiting,  being,  and  residing,  &c. 

Judgment  arrested} 


KING   V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1881. 

[Reported  83  N.  Y.   587] 

Andrews,  .L  The  indictment  charges  the  plaintiff  in  error  with 
keeping  a  disorderly  and  common  bawdy  and  gambling  house,  con- 
cluding ad  commune  nocumentuvi.  The  evidence  abundantly  sus- 
tained the  charge,  and  justified  the  jury  in.  finding  that  the  defendant 
kept  a  house  to  which  gamblers  and  prostitutes  resorted  for  the  pur- 
pose of  gambling  and  prostitution. 

1  See  State  v.  Appling,  25  Mo.  315  ;  State  v  Powell,  70  N.  C.  67  ,  Com.  v.  Linn  (Pa.) 
27  Atl.  843 ;  Com.  v.  Spratt,  14  Phila.  (Pa.)  365 ;  Bell  v.  State,  1  Swan  (Tenn.)  42. 


96  KING   V.   PEOPLE.  fCHAP.  IL 

The  court,  in  the  course  of  the  charge,  stated  to  the  jury  that  it  was 
not  necessary,  to  constitute  the  offence  of  keeping  a  disorderly  house, 
that  the  public  should  be  disturbed  by  noise,  and  refused  to  charge 
tliat,  in  order  to  convict  the  defendant  of  keeping  a  disorderly  house, 
the  jury  must  find  that  the  house  was  so  kept  as  to  disturb,  annoy,  and 
disquiet  the  neighbors  and  the  people  passing  and  repassing  the  house. 
An  exception  was  taken  to  the  charge  in  this  respect  and  to  the  refusal 
to  charge  as  requested. 

The  exception  was  not  well  taken.  The  keeping  of  a  common 
bawdy  or  gambling  house  constitutes  the  house  so  kept  a  disorderly 
house  and  an  indictable  nuisance  at  common  law.  Rex  v.  Dixon,  10 
Mod.  335  ;  1  Hawk.  P.  C.  693.  It  is  a  public  offence,  for  the  reason 
that  its  direct  tendency  is  to  debauch  and  corrupt  the  public  morals,  to 
encourage  idle  and  dissolute  habits  and  to  disturb  the  public  peace.  It 
is  not  an  essential  element  that  it  should  be  so  kept  that  the  neiglibor- 
hood  is  disturbed  by  the  noise,  or  that  the  immoral  practices  should  be 
open  to  public  observation.  The  law,  it  is  true,  gives  a  remedy  by 
indictment  against  those  who  unduly  disturb  the  quiet  of  a  community 
by  noises  which  tend  to  impair  the  enjoyment  of  life,  but  it  does  not 
refuse  cognizance  of  those  for  greater  public  injuries,  which  arise  from 
practices  which  destroy  the  peace  of  families  and  disturb  and  under- 
mine the  foundations  of  social  order  and  virtue. 

The-court  also  charged,  that  if  prostitutes  came  to  the  defendant's 
saloon  for  the  purpose  of  prostitution,  and  there  consummated  their 
intent,  to  the  knowledge  and  with  the  consent  of  tlie  defendant,  the 
jury  should  find  him  guilty.  The  defendant's  counsel  excepted,  and 
requested  the  court  to  charge  that,  in  order  to  find  the  defendant 
guilty  of  keeping  a  bawdy  house,  the  jury  must  find  that  he  kept  his 
house  for  the  resort  and  unlawful  commerce  of  lewd  people  of  both 
sexes.  The  court  said  :  "I  have  charged  the  jury  on  that  subject,  and 
decline  to  change  my  charge  ;  I  have  substantially  so  charged  ;  "  and 
exception  was  taken  to  the  refusal  of  the  court  to  charge  as  requested. 
In  this  there  was  no  error.  If  the  defendant's  house  was  the  resort  of 
prostitutes  plying  their  vocation  there,  to  the  knowledge  of  the  defend- 
ant, the  house  was  a  bawdy  house  ;  and  tins  was  what  in  substance  the 
court  charged,  and  the  court,  ni  stating  that  it  had  charged  substan- 
tially as  requested  by  the  defendant's  counsel,  gave  the  defendant  the 
benefit  of  the  definition  contained  in  his  request. 

The  defendant's  counsel  requested  the  court  to  charge  that  the  pla}'- 
in^-  of  cards  in  the  defendant's  house  does  not,  of  itself,  make  it  a 
gambling  house  ;  and  the  court,  in  reply,  said  :  "  Except  that  it  is  the 
gambling  for  money  that  makes  it  a  disorderly  house."  The  defend- 
ant's counsel  excepted.  The  request  w^as  directed  to  the  point  that 
the  mere  playing  of  cards  m  a  house  did  not  constitute  the  house  a 
gambling  house  ;  and  the  remark  of  the  court,  in  response  to  the 
request,  amounted  to  an  assent  to  this  proposition. 

The  defendant's  counsel  claims  tliat  the  remark  is  to  be  construed 


SECT.  III.]  REX   V.    SMITH.  97 

as  affirming  that  if  the  jury  should  find  that  the  defendant  permitted 
gaming  in  his  house  on  a  single  occasion  he  could  be  convicted.  But 
the  remarlv  of  the  court  is  to  be  construed  in  connection  with  the  pre- 
vious charge  and  the  occasion  on  which  it  was  made.  The  court  had 
stated  to  the  jury  that  if  the  defendant  kept  a  gambling  house,  where 
gamblers  resorted  to  play  for  money  and  did  so  play,  to  the  knowledo'e 
of  the  defendant,  he  was  guilty.  The  counsel  requested  the  court  to 
charge  a  specific  proposition,  which  the  court  substantially-  consented 
to,  and  added  the  element  to  which  tlie  defendant's  request  pointed, 
viz.,  that  the  playing  must  be  for  money  in  order  to  make  tlie  house  a 
gambling  house.  If  the  defendant  desired  a  specific  instruction  upon 
the  point  now  made,  he  should  have  requested  it.  The  court  had 
properly  defined  the  offence  of  keeping  a  gambling  house,  and  the 
remark  of  the  court  clearly  referred  to  a  house  of  this  character. 

These  are  all  the  exceptions  relied  upon  b}-  counsel.  We  think  none 
of  them  are  well  taken,  and  that  the  conviction  should  be  affirmed. 

All  concur.  Judgment  affirmed} 


REX   u.   SMITH. 
King's  Bench.     1726. 

[Reported  1  Strange,  704.] 

The  defendant  was  convicted  on  an  indictment  for  making  great 
noises  in  the  night  with  a  speaking  trumpet,  to  the  disturbance  of  the 
neighborhood  ;  which  the  court  held  to  be  a  nuisance,  and  fined  the 
defendant  £5. 

1  See  De  Forest  v.  U.  S.,  11  App.  D.  C.  458;  Smith  n.  Com.,  6  B.  Mon.  (Ky.)  21; 
State  V.  Haiues,  30  Me.  65  ;  People  v.  Jackson,  3  Den.  (N.  Y.)  101.  —  Ed. 


98  HALL'S    CASE.  [CHAP.  11- 


REX  V.   CROSS. 
Westminster  Sittings.     1826. 

[Reported  2  C.  Sf  P.  483.] 

Indictment  for  a  nuisance  in  keeping  a  house  for  slaughtering  horses 
at  a  place  called  Bell  Isle,  in  the  parish  of  St.  Mary,  Islington.  There 
were  also  counts  framed  on  a  private  Act  of  Parliament,  59  Geo.  III. 
c.  39,  s.  88,  on  which  no  question  was  raised.     Plea,  nob  guilty. 

It  was  proved  that  very  offensive  smells  proceeded  from  the  defend- 
ant's slaughtering  house  to  the  annoyance  of  those  who  lived  near  it, 
and  also  of  persons  who  passed  along  a  turnpike  road,  leading  from 
Battle  Bridge  to  Holloway. 

The  defendant  put  in  a  certificate  and  license  under  the  statute  26 
Geo.  III.  c.  71,  s.  1,  autliorizing  him  to  keep  a  house  for  the  slaughter- 
ing of  horses. 

Abbott,  C.  J.  This  certificate  is  no  defence,  and  even  if  it  were  a 
license  from  all  the  magistrates  in  the  county  to  the  defendant  to 
slaughter  horses  in  this  very  place  it  would  not  entitle  the  defendant  to 
continue  the  business  there  one  hour  after  it  becomes  a  public  nuisance 
to  the  neighborhood.  If  a  certain  noxious  trade  is  already  established 
in  a  place  remote  from  habitations  and  public  roads,  and  persons  after- 
wards come  and  build  houses  within  the  reach  of  its  noxious  effects,  or 
if  a  public  road  be  made  so  near  to  it  that  the  carrying  on  of  the  trade 
becomes  a  nuisance  to  the  persons  using  the  road ;  in  those  cases  the 
party  would  be  entitled  to  coniinue  his  trade,  because  his  trade  was 
legal  before  the  erection  of  the  houses  in  the  one  case  and  the  making 
of  the  road  in  the  other.  Verdict,  Guilty.^ 


HALL'S   CASE. 

King's  Bench.     1671. 

[Reported  1   Ventrls,  169.] 

Complaint  was  made  to  the  Lord  Chief  Justice  by  divers  of  the 
inhabitants  about  Charing-Cross,  that  Jacob  Hall  was  erecting  of  a 
great  booth  in  the  street  there,  intending  to  show  his  feats  of  activity, 
and  dancing  upon  the  ropes  there,  to  their  great  annoyance  by  reason 
of  the  crowd  of  idle  and  naughty  people  that  would  be  drawn  thither, 
and  their  apprentices  inveigled  fi'om  their  shops. 

Upon  this  the  Chief  Justice  appointed  him  to  be  sent  for  into  the 
court,  and  that  an  indictment  should  be  presented  to  the  grand  jury  of 

1  See  Com.  v.  Perry,  139  Mass.  198. 


SECT.  III.]  ANONYMOUS.  99 

this  matter ;  and  withal  the  court  warned  him,  that  he  should  proceed 
no  further. 

But  he  being  dismissed,  the\-  were  presently  after  informed  that  he 
caused  his  workmen  to  go  on.  Whereupon  they  commanded  the  mar- 
shal to  fetch  him  into  court ,  and  being  brought  in  and  demanded, 
how  he  durst  go  on  in  contempt  of  the  court,  he  with  great  impudence 
allirmed,  that  he  had  the  King's  warrant  for  it,  and  promise  to  bear  him 
harmless. 

Then  they  required  of  him  a  recognizance  of  £300,  that  he  should 
cease  further  building ;  which  he  obstinately  refused  and  was  commit- 
ted. And  the  court  caused  a  record  to  be  made  of  this  nuisance,  as 
upon  their  own  view  (it  being  in  their  way  to  Westminster),  and  awarded 
a  writ  thereupon  to  the  Sheriff  of  Middlesex,  commanding  him  to  pros- 
trate the  building. 

And  the  court  said,  things  of  this  nature  ought  not  to  be  placed 
amongst  people's  habitations,  and  that  it  was  a  nuisance  to  the  King's 
royal  palace  ;  besides  that  it  straitened  the  way  and  was  insufferable  in 
that  respect.^ 


ANONYMOUS. 
Nisi  Prius.     1699. 

[Reported  12  il/ocfern,  342.] 

One  was  indicted  for  a  nuisance  for  keeping  several  barrels  of  gun- 
powder in  a  house  in  Brentford  town,  sometimes  two  days,  sometimes  a 
week,  till  he  could  conveniently  send  them  to  London.     Wherein 

Holt,  C.  J.,  resolved,  1st.  That  to  support  this  indictment  there  must 
be  apparent  danger,  or  mischief  already  done.^ 

2dly.  Though  it  had  been  done  for  fifty  or  sixty  years,  yet  if  it  be  a 
nuisance  time  will  not  make  it  lawful. 

3dly.  If,  at  the  time  of  setting  up  this  house  in  which  the  gunpowder 
is  kept  there  had  been  no  houses  near  enough  to  be  prejudiced  by  it, 
but  some  were  built  since,  it  would  be  at  peril  of  builder. 

4thly.  Though  gunpowder  be  a  necessary  thing,  and  for  defence  of 
the  kingdom,  yet  if  it  be  kept  in  such  a  place  as  it  is  dangerous  to  the 
mhabitants  or  passengers  it  will  be  a  nuisance. 

»  See  Rex  v.  Bradford,  Comb.  304. 

«  See  Fee.  v.  Sands,  1  Johns.  (N,  Y.)  78. 


100  REX   V.   BURNETT.  fCHAP.  II. 


KEX  V.  BURNETT. 
King's  Bench.     1815. 

[Reported  4  Maule  and  Selwi/n,  272.] 

The  defendant,  an  apothecary,  was  indicted  by  that  addition  at  the 
Middlesex  Sessions  that  he,  on,  etc.,  in  the  fifty-fourth  year,  etc.,  and  on 
clivers  other  days  between  that  day  and  the  29th  of  July,  with  force  and 
arms  at,  etc.,  unlawfully  and  injuriously  did  inoculate  one  A.  S.  an 
infant  of  seven  months,  one  W.  M.  an  infant  of  one  year,  and  divers 
other  infants  of  tender  years,  whose  names  are  unlvuown,  with  a  certain 
contagious  and  dangerous  disease  called  the  small  pox,  by  means  of 
which  the  said  A.  S.,  W.  M.,  and  the  said  other  infants  on  the  said  day 
and  on  the  other  days,  etc.,  at,  etc.,  became  and  were  dangerously  ill 
of  the  said  contagious  disease ;  and  the  defendant,  well  knowing  the 
premises,  after  he  had  so  inoculated  them,  and  while  they  were  so 
dangerously  ill  of  the  said  contagious  disease  on,  etc.,  at,  etc.,  did 
unlawfully  "and  injuriously  cause  the  said  A.  S.,  W.  M.,  and  the  said 
other  infants,  to  be  carried  into  and  along  a  certain  i)ublic  street  and 
highway,  called,  etc.,  in  and  along  which  divers  subjects  were  then 
passing,  and  near  to  divers  dwelling-houses,  etc.,  to  the  great  danger 
of  infecting  with  the  said  contagious  disease  all  the  subjects  who  were 
on  those  days  and  times  in  and  near  the  said  street  and  highway, 
dwelling-houses,  etc.,  who  had  not  had  the  disease,  and  ad  commune 
nocumentum,  etc. 

The  indictment  being  removed  into  this  court,  the  defendant  pleaded 
not  guilty,  and  was  found  guilty. 

And  now  it  was  moved  by  ^V.  Owen,  in  arrest  of  judgment,  that  this 
was  not  any  offence.  And  he  said  that  this  indictment  differed  materially 
from  that  in  Rex  v.  Vantandillo,  4  M.  &  S.  73  ;  for  by  this  indictment  it 
appears  that  the  defendant  is  by  profession  a  person  qualified  to  inoc- 
ulate with  this  disease,  provided  it  be  lawful  for  any  person  to  inoculate 
with  it.  Therefore  unless  the  court  determine  that  the  inoculating 
with  the  small  pox  has  now  become  of  itself  unlawful,  there  is  nothing 
in  this  indictment  to  show  it  unlawful ;  for  as  to  its  being  alleged  that 
he  caused  them  to  be  carried  along  the  street,  that  is  no  more  than 
this,  that  he  directed  the  patients  to  attend  him  for  advice  instead  of 
visiting  them,  or  that  he  prescribed  what  he  might  deem  essential  to 
their  recovery,  air  and  exercise.  And  in  Rex  v.  Sutton,  which  was  an 
indictment  for  keeping  an  inoculating  house,  and  therefore  much  more 
likely  to  spread  infection  than  what  has  been  done  here,  the  court  said 
that  the  defendant  might  demur. 

Lord  Ellenborough,  C.  J.  The  indictment  lays  it  to  be  unlawfully 
and  injuriously,  and  to  make  that  out,  it  must  be  shown  that  what  was 
done  was  in  the  manner  of  doing  it  incautious,  and  likely  to  affect  the 
health  of  others.     The   words  unlawfully  and  injuriously  preclude  all 


SECT.  III.]  REGINA  V.  PARDENTON.  10] 

legal  cause  of  excuse.  And  though  inoculation  for  the  small  i)OX  may 
be  practised  lawfully  and  innocently,  yet  it  must  be  under  such  guards 
as  not  to  endanger  the  public  health  b}-  communicating  this  infectious 
disease. 

Dampiku.  J.  The  charge  amounts  to  this,  that  the  defendant,  after 
inoculating  tlu;  children,  unlawfuU}'  exposed  them,  while  infected  with 
the  disease,  in   the  public  street  to  the  danger  of  the  public  health. 

Le  Blanc,  J.  in  passing  sentence  observed  that  the  introduction 
of  vaccination  did  not  render  the  practise  of  inoculation  for  the  small 
pox  unlawful,  but  that  in  all  times  it  was  unlawful,  and  an  indictable 
offence,  to  expose  persons  infected  with  contagious  disorders,  and 
therefore  liable  to  communicate  them  to  the  public,  in  a  public  place 
of  resort.^ 

The  defendcoit  was  sentenced  to  six  months'  imiwisonment. 


Lord  Ellenborough,  C  J.,  in  Williams  v.  East  India  Co.,  3  East  192, 
200.  That  the  declaration  in  imputing  to  the  defendants  the  having 
wrongfully  put  on  board  a  ship,  without  notice  to  those  concerned  "in 
the  management  of  the  ship,  an  article  of  an  highh^  dangerous  com- 
bustible nature,  imputes  to  the  defendants  a  criminal  negligence  cannot 
well  be  questioned.  In  order  to  make  the  putting  on  board  wrongful 
the  defendants  must  be  conusant  of  the  dangerous  quality  of  the  article 
put  on  board;  and  if  being  so,  the}'  yet  gave  no  notice  considering  the 
probable  danger  thereby  occasioned  to  the  lives  of  those  on  board,  it 
amounts  to  a  species  of  delinquency  in  the  persons  concerned  in  so 
putting  such  dangerous  article  on  board,  for  which  they  are  criminally 
liable,  and  punishable  as  for  a  misdemeanor  at  least. 


EEGINA  V.   PARDENTON. 
Central  Criminal  Court.     1853. 
[Reported  6  Cox  C.  C.  247.] 

Richard  Pardenton  and  Joseph  Woods  were  indicted  for  unlawfully 
and  negligently  driving  a  certain  railway  engine  in  an  incautious,  care- 
less, and  negligent  manner,  and  without  regarding  a  certain  signal  of 
danger,  whereby  the  life  and  limbs  of  divers  persons  were  greatly  en- 
dangered. Three  other  counts  varying  the  manner  of  stating  the 
charge. 

1  See  Reg.  v.  Hensou,  Dears.  24 ;  Reg.  v.  Lister,  Dears.  &  B.  209  (but  see  Peopli 
V.  Sands,  1  Johns.  78) ;  U.  S.  v.  Hart,  1  Pet.  C.  C.  390.  —  Ed. 


102  RKX    V.    RODERICK.  [CITA?.  II. 

The  indictment  was  founded  upon  the  13th,  14th,  and  15th  sections 
of  3  &  4  Vict.  c.  97.  A  difficulty  occurred  on  the  first  three  counts, 
founded  on  the  13th  section,  as  to  the  jurisdiction  of  this  Court ;  it 
being  directed  that  upon  the  magistrate  declining  to  act  summarily,  the 
complaint  should  be  removed  to  the  Quarter  Sessions.^ 

Cliamhers  [for  the  prosecution]  admitted  that  there  was  no  act 
which  placed  the  Central  Criminal  Court  in  the  same  position  as  a  Court 
of  Quarter  Sessions.  But  still  the  question  would  arise  whether, 
although  the  offence  was  alleged  to  be  against  the  form  of  the  statute, 
the  indictment  did  not  disclose  an  offence  at  common  law,  where  it 
charged  acts  endangering  the  lives  of  Her  Majest3''s  subjects. 

Cresswell,  J.  Do  30U  mean  to  argue  that  if  a  man  were  to  gallop 
a  horse  furiously  through  the  public  streets  without  hurting  any  person, 
that  he  would  be  guilty  of  a  misdemeanor  because  he  might  be  convicted 
of  manslaughter  if  anj-  one  were  knocked  down  b}'  him  and  killed? 

Without  heariug  the  evidence,  I  think  this  case  is  now  ripe  for  de- 
cision. Whatever  construction  may  be  put  upon  the  13th  and  14th 
sections  of  the  act  referred  to  as  regards  the  first  three  counts,  I  have 
no  difficulty  in  saying  that  these  counts  do  not  disclose  any  offence  at 
common  law. 


SECTION   IV. 

Incomplete    Offences. 

EEX  V.  RODERICK. 
Stafford  Assizes.     1837. 

[Reported  7  C.  <j-  P.  795.] 

Misdemeanor.  The  first  count  of  the  indictment  charged  the  pris- 
oner with  unlawfully  knowing  a  child  uuder  the  age  of  twelve  years. 
Second  count,  for  attempting  so  to  do.  Third  count,  for  a  common 
assault. 

F.  V.  Lee,  for  the  prisoner,  objected  that  an  attempt  to  commit  a 
statutory  misdemeanor  was  not  a  misdemeanor. 

Godson.,  for  the  prosecution,  cited  the  case  of  Rex  v.  Butler,  6  C.  &  P. 
368. 

Parke,  B.  If  this  offence  is  made  a  misdemeanor  by  statute,  it  is 
made  so  for  all  purposes.  There  are  many  cases  in  which  an  attempt 
to  commit  a  misdemeanor  has  been  held  to  be  a  misdemeanor ;  and  an 
attempt  to  commit  a  misdemeanor  is  a  misdemeanor,  whether  the  offence 
is  created  by  statute  or  was  an  offence  at  common  law. 

Verdict,  guilty. 

1  This  short  statement  is  taken  from  the  report  in  38  Cent.  Crim.  Ct.  Rep.  691. 
Only  so  much  of  the  case  as  discusses  the  offence  at  common  law  is  given.  —  Ed. 


SECT.  IV.]  REGINA  V.    COLLINS.  103 


REGINA  V.  COLLINS. 

Crown  Case  Reserved.     1864. 

[Reported  9  Cox  C.  C.  497.] 

Case  reserved  for  the  opinion  of  this  court  by  the  Deputy- Assistant 
Judge  at  the  Middlesex  Sessions. 

The  prisoners  were  tried  before  me  at  the  Middlesex  Sessions  on  an 
indictment  which  stated  that  they  unlawfully  did  attempt  to  commit  a 
certain  felony  ;  that  is  to  say,  that  they  did  then  put  and  place  one  or 
the  hands  of  each  of  them  into  the  gown  pocket  of  a  certain  woman, 
whose  name  is  to  the  jurors  unknown,  with  intent  the  property  of  the 
said  woman,  in  the  said  gown  pocket  then  being,  from  the  person  of 
the  said  woman  to  steal,  &c. 

The  evidence  showed  clearly  that  one  of  the  prisoners  put  his  hand 
into  the  gown  pocket  of  a  lady,  and  that  the  others  were  all  concerned 
in  the  transaction. 

The  witness  who  proved  the  case  said  on  cross-examination  that  he 
asked  the  lady  if  she  had  lost  anything,  and  she  said  "  No." 

For  the  defence  it  was  contended  that  to  put  a  hand  into  an  empty 
pocket  was  not  an  attempt  to  commit  felony,  and  that  as  it  was  not 
proved  atRrmatively  that  there  was  any  property  in  the  pocket  at  the 
time,  it  must  be  taken  that  there  was  not,  and  as  larceny  was  the  steal- 
ing of  some  chattel,  if  there  was  not  any  chattel  to  be  stolen,  putting 
the  hand  in  the  pocket  could  not  be  considered  as  a  step  towards  the 
completion  of  the  offence. 

I  declined  to  stop  the  case  upon  this  objection  ;  but  as  such  cases 
are  of  frequent  occurrence,  I  thought  it  right  that  the  point  should  be 
determined  by  the  authority  of  the  Court  of  Criminal  Appeal. 

The  jury  found  all  the  prisoners  guilty,  and  the  question  upon  which 
the  opinion  of  your  Lordships  is  respectfully  requested  is,   whether 
under  the  circumstances  the  verdict  is  sustainable  in  point  of  law? 
The  prisoners  are  in  custody  awaiting  sentence. 

Joseph  Payne,  Deputy-Assistant  Judge. 
Pokmd,  for  the  prisoners.  The  conviction  is  bad.  It  is  not  an 
indictable  offence  to  put  a  hand  into  an  empty  pocket  with  intent  to 
steal,  but  an  offence  punishable  only  under  the  Vagrant  Act.  It  is  not 
alleged  in  the  indictment  that  there  was  any  property  in  the  pocket. 
This  is  very  like  the  case  of  Reg.  v.  M'Pherson  (1  Dears.  &  B.  197; 
7  Cox  Crim.  Cas.  281),  where  it  was  held  that  a  man  who  was  charged 
with  breaking  and  entering  a  dwelling-house  and  stealing  certain  spe- 
cified goods,  could  not  be  convicted  unless  the  specified  goods  were 
in  the  house,  notwithstanding  other  goods  were  there.  [Cockburn, 
C.  J.  That  case  proceeds  on  the  ground  that  you  must  prove  the 
property  as  laid.]  In  the  course  of  the  argument  Bramwell,  B.,  put 
this  very  case,  and  said :  "The  argument  that  a  man  putting  his  hand 


104  REGINA   V.    COLLINS.  [CHAP.  II. 

into  an  empt}'  pocket  might  be  convicted  of  attempting  to  steal, 
appeared  to  me  at  first  plausible  ;  but  supposing  a  man,  believing  a 
block  of  wood  to  be  a  man  who  was  his  deadly  enemy,  struck  it  a  blow 
intending  to  murder,  could  he  be  convicted  of  attempting  to  murder  the 
man  he  took  it  to  be?"  So  in  R.  v.  Scudder  (3  C.  &  P.  605)  it  was 
held  that  there  could  not  be  a  conviction  for  administering  a  drug  to  a 
woman  to  procure  abortion,  if  it  appeared  that  the  woman  was  not 
with  child  at  all.  That  case  was  before  the  Consolidation  Act  (24  & 
25  Vict.  c.  96).  [Bramwell,  B.  You  may  put  this  case :  Suppose  a 
man  takes  awa\'  an  umbrella  from  a  stand  with  intent  to  steal  it,  believ- 
ing it  not  to  be  his  own,  but  it  turns  out  to  be  his  own,  could  he  be 
convicted  of  attempting  to  steal?]     It  is  submitted  that  he  could  not. 

Metcalfe.,  for  the  prosecution.  The  fallacy  in  the  argument  on  the 
other  side  consists  in  assuming  that  it  is  necessary'  to  prove  anything 
more  than  an  attempt  to  steal.  The  intent  to  steal,  it  is  conceded,  is 
not  sufficient ;  but  any  act  done  to  carrj'  out  the  intent,  as  putting  a 
hand  into  the  pocket,  will  do.  [Crompton,  J.  Suppose  a  man  were 
to  go  down  a  lane  armed  with  a  pistol,  with  the  intention  to  rob  a 
particular  person,  whom  he  expected  would  pass  that  wa}',  and  the  per- 
son does  not  happen  to  come,  would  that  be  an  attempt  to  rob  the 
person  ?] 

CoCKBURN,  C.  J.  We  are  all  of  opinion  that  this  conviction  cannot 
be  sustained,  and  in  so  holding  it  is  necessar\'  to  observe  that  the  judg- 
ment proceeds  on  the  assumption  that  the  question,  whether  there  was 
anything  in  the  pocket  of  the  prosecutrix  which  might  have  been  the 
subject  of  larceny,  does  not  appear  to  have  been  left  to  the  jurj-.  The 
case  was  reserved  for  the  opinion  of  this  court  on  the  question,  whether, 
supposing'a  person  to  put  his  hand  into  the  pocket  of  another  for  the 
purpose  of  larceny,  there  being  at  the  time  nothing  in  the  pocket,  that 
is  an  attempt  to  commit  larceny  ?  We  are  far  from  saying  that  if  the 
question  whether  there  was  anything  in  the  pocket  of  the  prosecutrix 
had  been  left  to  the  jury,  there  was  not  evidence  on  which  the}'  might 
have  found  that  there  was,  in  which  case  the  conviction  would  have 
been  affirmed.  But,  assuming  that  there  was  nothing  in  the  pocket  of 
the  prosecutrix,  the  charge  of  attempting  to  commit  larcen}^  cannot  be 
sustained.  This  case  is  governed  b}'  that  of  Reg.  v.  M'Pherson  ;  and 
we  think  that  an  attempt  to  commit  a  felon}'  can  onl}-  be  made  out 
when,  if  no  interruption  had  taken  place,  the  attempt  could  have  been 
carried  out  successfully,  and  the  felon}*  completed  of  the  attempt  to 
copomit  which  the  party  is  charged.  In  this  case,  if  there  was  nothing 
in  the  pocket  of  the  prosecutrix,  in  our  opinion  the  attempt  to  commit 
larceny  cannot  be  established.  It  may  be  illustrated  by  the  case  of  a 
person  going  into  a  room,  the  door  of  which  he  finds  open,  for  the  pur- 
pose of  stealing  whatever  property  he  may  find  there,  and  finding 
nothing  in  the  room,  in  that  case  no  larceny  could  be  committed,  and 
therefore  no  attempt  to  commit  larceny  could  be  committed.  In  the 
absence,  therefore,  of  any  finding  by  the  jury  in  this  case,  either  di- 


SECT.  IV.]  COMMONWEALTH   V.   GREEN.  105 

recti}',  or  inferentially  by  their  verdict,  that  there  was  any  property  in 
the  pocket  of  the  prosecutrix,  we  think  that  this  conviction  must  be 
quashed.^  Conviction  quashed. 


COMMONWEALTH  v.  GREEN. 

Supreme  Judicial  Court  of  Massachusetts.     1824. 

[Reported  2  Pickering,  380.] 

At  May  term,  1823,  in  the  county  of  Hampden,  the  prisoner,  an 
infant  under  the  age  of  fourteen  years,  was  convicted  of  an  assault  with 
intent  to  commit  a  rape. 

And  now,  upon  a  motion  in  arrest  of  judgment,  E.  H.  Mills  and 
G.  Bliss,,  junior,  for  the  prisoner,  contended  that  it  was  clear  from 
all  the  authorities  that  an  infant  under  that  age  is  presumed  by 
law  to  be  unable  to  commit  a  rape  (1  Haile's  P.  C.  630 ;  4  Bl. 
Com.  212;  1  East's  P.  C.  446,  §  8);  and  in  3  Chit.  Cr.  L.  811,  it 
is  said  that  no  evidence  will  be  admitted  to  implicate  him  as  the 
actual  ravisher,  though  he  may  be  guilt}-  as  an  abettor.  It  would  be 
absurd  then  to  sa}-  that  he  may  be  indicted  for  an  attempt  to  do  what 
the  law  presumes  him  incapable  of  doing.  Suppose  an  assault  b}-  a 
man  upon  another  man  dressed  in  woman's  apparel ;  an  indictment 
charging  him  with  an  assault  with  intent  to  commit  a  rape  could  not  be 
sustained.  So  a  female  could  not  be  indicted  for  an  assault  with  such 
an  intent.  An  indictment  for  throwing  oil  of  vitriol  with  intent  to 
burn  a  person's  clothes  might  be  good  ;  but  not  so  of  an  indictment  for 
throwing  water  with  such  an  intent.  If  a  woman  were  indicted  for 
petty  treason,  and  it  should  appear  that  she  had  not  been  married,  she 
could  not  be  convicted.  A  man  cannot  be  convicted  of  a  rape  on  his 
own  wife,  nor  of  attempting  to  commit  one,  because  the  matrimonial 
consent  cannot  be  retracted.  In  like  manner  the  prisoner  cannot  be 
convicted  of  a  rape,  nor  of  an  attempt  to  commit  one,  because  the  law 
presumes  him  to  be  incapable.  To  constitute  an  offence  there  must  be 
an  intent  coupled  with  an  act,  and  likewise  a  legal  ability  to  do  the 
thing  attempted.  In  regard  to  the  ph3sical  powers  of  the  prisoner  the 
court  cannot  go  into  the  inquiry  whether  here  is  a  particular  exception 

1  This  decision  was  overruled  by  Reg.  v.  Ring,  17  Cox,  C.  C.  491. 

"  If  a  statute  simply  made  it  a  felony  to  attempt  to  kill  any  human  being,  or  to 
conspire  to  do  so,  an  attempt  by  means  of  witchcraft,  or  a  conspiracy  to  kill  by  means 
of  charms  and  incantations,  would  not  be  an  offense  within  such  a  statute.  The  pov- 
erty of  language  compels  one  to  say,  '  an  attempt  to  kill  by  way  of  witchcraft,'  but 
such  an  attempt  is  really  no  attempt  at  all  to  kill.  It  is  true  the  sin  or  wickedness 
may  be  as  great  as  an  attempt  or  conspiracy  by  competent  means ;  but  human  laws  are 
made,  not  to  punish  sin,  but  to  prevent  crime  and  mischief." — Pollock,  C.  B.,  ia 
Att'y-Gen'l  v.  Sillem,  2  H.  &  C.  431,  525.— Ed. 


106  COMMONWEALTH    V.    GREEN.  [CHAP.  IL 

contrary  to  the  general  rule  of  law.  We  do  not  contend  that  the  pris- 
oner may  not  be  punished  for  the  assault,  but  only  that  he  is  not  indict- 
able for  an  assault  with  the  intent  alleged  in  this  indictment. 

Davis,  Solicitor-General,  for  the  Commonwealth.  The  maxim  that 
an  infant  under  the  age  of  fourteen  years  is  presumed  unable  to  com- 
mit a  rape,  is  indeed  found  in  the  books.  It  originated  in  ancient 
times,  and  it  requires  to  be  subjected  to  the  examination  of  a  modern 
judicial  tribunal.  Tliat  no  evidence  shall  be  admitted  to  impeach  this 
presumption  is  the  dictutn  of  one  writer  only,  and  it  cannot  hold  uni- 
versall}'.  In  some  cases  an  infant  under  fourteen  years  is  physically 
able,  and  there  was  evidence  of  it  in  the  present  case  ;  it  would  be 
absurd  then  by  such  presumption  to  shut  out  the  fact  itself.  The 
maxim  is  founded  on  the  principle  that  there  must  be  both  penetration 
and  emission  ;  but  this  idea  is  now  exploded.  1  Hale's  P.  C.  628  ; 
3  Inst.  59,  60 :  1  East's  P.  C.  436,  §  3  ;  1  Russell  on  Crimes,  805.  In 
Pennsylvania  v.  Sullivan,  Addis.  143,  it  is  said  that  the  essence  of  the 
crime  is  the  violence  to  the  person  and  feelings  of  the  woman.  An 
injur}-  to  the  feelings  may  be  inflicted  by  a  person  under  fourteen  years 
as  much  as  by  one  over  that  age  ;  and  where  there  is, a  guilty  inten- 
tion in  the  perpetrator  of  the  injur}-,  there  seems  to  be  no  good  rea- 
son for  exonerating  him  from  punishment  on  account  of  his  ph3-sical 
incapacit}'. 

Mills,  in  reply,  said  the  law  was  not  clear  as  to  what  facts  are 
necessary  to  constitute  the  crime  of  rape,  and  in  addition  to  the  author- 
ties  before  cited  to  this  point,  he  referred  to  12  Co.  37 ;  1  Hawk. 
P.  C.  c.  41,  §  3. 

By  the  Court  (Parker,  C.  J.,  dissenting).  The  court  are  of  opin- 
ion that  the  verdict  must  stand  and  judgment  be  rendered  on  it.  The 
law  which  regards  infants  under  fourteen  as  incapable  of  committing 
rape  was  established  in  favor  em  vitce,  and  ought  not  to  be  applied  by 
analogy  to  an  inferior  offence,  the  commission  of  which  is  not  punished 
with  death.  A  minor  of  foui'teen  3^ears  of  age,  or  just  under,  is  capable 
of  that  kind  of  force  which  constitutes  an  essential  ingredient  in  the 
crime  of  rape,  and  he  may  make  an  assault  with  an  intent  to  commit  that 
crime,  although  by  an  artificial  rule  he  is  not  punishable  for  the  crime 
itself.  An  intention  to  do  an  act  does  not  necessarily  imph-  an  ability 
to  do  it ;  as  a  man  who  is  emasculated  ma}-  use  force  with  intent  to 
ravish,  although  pos.sibly,  if  a  certain  effect  should  be  now,  as  it  was 
formerly,  held  essential  to  the  crime,  he  could  not  be  convicted  of  a 
rape.  Females  might  be  in  as  much  danger  from  precocious  boys  as 
from  men,  if  such  bo^'S  are  to  escape  with  impunity  from  felonious 
assaults,  as  well  as  from  the  felon}-  itself.^  Motion  overruled. 

1  Contra,  State  v.  Sam,  Winston,  300  (attempt)  ;  Rex  v.  Eldershaw,  3  C.  &  P.  396  ; 
Reg.  V.  Philips,  8  C.  &  P.  736  ;  State  v.  Handy,  4  Harr.  566  (assaults  with  intent). 


SECT.  IV.]  COMMONWEALTH    V.    MCDONALD.  107 


COMMONWEALTH  v.  McDONALD. 
Supreme  Judicial  Court  of  Massachusetts.     1850. 

^Reported  5  Gushing,  365.] 

The  defendant  was  indicted  in  the  municipal  court,  and  there  tried 
before  Mellen,  J.,  for  an  attempt  to  commit  a  larceny  from  the 
person. 

At  the  trial,  there  being  no  evidence,  on  the  part  of  the  prosecution, 
that  the  individual  from  whom  the  defendant  was  charged  with  an 
attempt  to  steal,  had  an}'  property  upon  his  person  at  the  time  of  the 
alleged  attempt,  the  defendant  asked  the  judge  to  rule  that  the  indict- 
ment could  not  be  sustained.^ 

But  the  presiding  judge  ruled  otherwise  ;  and,  the  jury  thereupon 
returning  a  verdict  of  guilt}^  the  defendant  excepted. 

T.  Willey,  for  the  defendant. 

Clifford,  Attorney-General,  for  the  Commonwealth. 

Fletcher,  J.  It  was  said,  in  argument  for  the  defendant,  that  he 
could  not  be  said  to  have  attempted  to  steal  the  property  of  the  un- 
known person,  if  there  was  no  property  to  be  stolen  ;  and  that  therefore 
the  indictment  should  have  set  out  the  property-  and  shown  the  exist- 
ence and  nature  of  it  by  the  proof.  But  it  will  appear  at  once,  by  a 
simple  reference  to  the  import  of  the  term  "  attempt,"  that  tliis  propo- 
sition cannot  be  maintained.  To  attempt  is  to  make  an  effort  to  effect 
some  object,  to  make  a  trial  or  experiment,  to  endeavor,  to  use  exer- 
tion for  some  purpose.  A  man  may  make  an  attempt,  an  effort,  a  trial, 
to  steal,  by  breaking  open  a  trunk,  and  be  disappointed  in  not  finding 
the  ol)ject  of  pursuit,  and  so  not  steal  in  fact.  Still  he  remains  never- 
theless chargeable  with  the  attempt,  and  with  the  act  done  towards  the 
commission  of  the  theft.  So  a  man  may  make  an  attempt,  an  experi- 
ment, to  pick  ci  pocket,  b}-  thrusting  his  hand  into  it,  and  not  succeed, 
because  there  happens  to  be  nothing  in  the  pocket.  Still  he  has  clearl}' 
made  the  attempt,  and  done  the  act  towards  the  commission  of  the 
offence.  So  in  the  present  case  it  is  not  probable  that  the  defendant 
had  in  view  any  particular  article,  or  had  any  knowledge  whether  or  not 
there  was  anything  in  the  pocket  of  the  unknown  person ;  but  he 
attempted  to  pick  the  pocket  of  whatever  he  might  find  in  it,  if  haply 
he  should  find  anything  ;  and  the  attempt,  with  the  act  done  of  thrust- 
ing his  hand  into  the  pocket,  made  the  offence  complete.  It  was  an 
experiment,  and  an  experiment  which,  in  the  language  of  the  statute, 
fiiiled  ;  and  it  is  as  much  within  the  terms  and  meaning  of  the  statute, 
if  it  failed  b}'  reason  of  there  being  nothing  in  the  pocket,  as  if  it  had 
failed  from  any  other  cause.  The  following  cases  fully  support  the 
view  taken  in  this  case,  and  I  am  not  aware  of  any  opposing  authori- 

,  1  Only  so  much  of  the  case  a.s  relates  to  this  point  is  printed. 


108  PEOPLE    V.    LEE    KONG.  [CIIAP.  IL 

ties  :  King  v.  Higgins,  2  East,  5  ;  People  v.  Bush,  4  Hill,  133  ;  Jossl}'!! 
V.  Commonwealth,  6  Met.  236  ;  Rogers  v.  Commonwealth,  5  S.  &  R. 
463. 

This  decision  is  confined  to  the  particular  case  under  consideration, 
of  an  attempt  to  steal  from  the  person  ;  as  there  ma}-  perhaps  be  cases 
of  attempts  to  steal  where  it  would  be  necessary-  to  set  out  the  par- 
ticular property  attempted  to  be  stolen,  and  the  value.  It  not  being 
necessary,  in  the  present  case,  to  set  out  in  the  indictment  the  property 
attempted  to  be  stolen,  the  defendant's  exception  to  the  ruling  of  the 
judge,  that  there  need  be  no  evidence  of  any  property'  in  the  pocket  of 
the  unknown  person,  cannot,  of  course,  be  sustained,  unless  such  evi- 
dence was  made  necessary'  by  the  allegations  in  the  indictment. 

The  indictment  alleges  that  the  defendant  attempted  to  steal  from  the 
unknown  person  his  personal  property  then  in  his  pocket  and  in  his 
possession,  neither  the  name  nor  the  value  of  the  propert}-  being  known 
to  the  jurors.  But  this  allegation  is  wholly  unnecessar\'  and  imma- 
terial, and  may  be  stricken  out ;  and  the  indictment  will  still  remain 
sufficient,  and  contain  all  the  allegations  necessary  to  make  out  the 
offence  against  the  defendant,  and  to  warrant  the  conviction. 

It  not  being  necessary  to  allege  that  there  was  anything  in  the 
pocket  of  the  unknown  person,  and  as  all  that  part  of  the  indictment 
may  be  stricken  out,  the  ruling  of  the  court,  that  there  need  be  no  e^•i- 
dence  of  any  property  in  the  pocket  of  the  person,  was  correct,  and  is 
fully  supported  b}'  authority.     Roscoe,  Crim.  Ev.  100. 

Exceptions  overruled.^ 


PEOPLE   V.    LEE   KONG. 
Supreme  Court  of  California.     1892. 

[Reported  9.5  California,  666.] 

Garoutte,  J.  Appellant  was  convicted  of  the  crime  of  an  as- 
sault with  intent  to  commit  murder,  and  now  prosecutes  this  appeal, 
insisting  that  the  evidence  is  insufficient  to  support  the  verdict. 

The  facts  of  the  case  are  novel  in  the  extreme,  and  when  applied 
to  principles  of  criminal  law,  a  question  arises  for  determination  upon 
which  counsel  have  cited  no  precedent. 

A  policeman  secretly  bored  a  hole  in  the  roof  of  appellant's  build- 
ing, for  the  purpose  of  determining,  by  a  view  from  that  point  of 
observation,  whether  or  not  he  was  conducting  therein  a  gambling  or 
lottery  game.  This  fact  came  to  the  knowledge  of  appellant,  and 
upon  a  certain  night,  believing  that  the  policeman  was  upon  the  roof 

1  Accord  State  v.  Wilson,  30  Conn.  505  ;  People  v.  Jones,  46  Mich.  441  ;  People  v. 
Moran,  123  N.  Y.  254.  And  see  Harvick  v.  State,  49  Ark.  514 ;  Clark  v.  State,  86 
Tenn.  511. 


SECT.  IV.]  PEOPLE   V.    LEE    KONG.  109 

at  the  contemplated  point  of  observation,  he  fired  his  pistol  at  the 
spot.  He  shot  in  no  fright,  and  his  aim  was  good,  for  the  bullet 
passed  through  the  roof  at  the  point  intended  ;  but  very  fortunately 
for  the  officer  of  the  law,  at  the  moment  of  attack  he  was  upon  the 
roof  at  a  different  spot,  viewing  the  scene  of  action,  and  thus  no 
substantial  results  followed  from  appellant's  fire. 

The  intent  to  kill  is  quite  apparent  from  the  evidence,  and  the 
single  question  is  presented.  Do  the  facts  stated  constitute  an  assault? 
Our  criminal  code  defines  an  assault  to  be  "  an  unlawful  attempt, 
coupled  with  a  present  ability,  to  commit  a  violent  injury  upon  the 
person  of  another."  It  will  thus  be  seen  that  to  constitute  an  assault 
two  elements  are  necessary,  and  the  absence  of  either  is  fatal  to  the 
charge.  There  must  be  an  unlawful  attempt,  and  there  must  be  a 
present  ability,  to  inflict  the  injury.  In  this  case  it  is  plain  that  the 
appellant  made  an  attempt  to  kill  the  officer.  It  is  equally  plain  that 
this  attempt  was  an  unlawful  one.  For  the  intent  to  kill  was  present 
in  his  mind  at  the  time  he  fired  the  shot,  and  if  death  had  been  the 
result,  under  the  facts  as  disclosed,  there  was  no  legal  justification  to 
avail  him.  The  fact  that  the  officer  was  not  at  the  spot  where  the 
attacking  party  imagined  he  was,  and  where  the  bullet  pierced  the 
roof,  renders  it  no  less  an  attempt  to  kill.  It  is  a  well-settled  prin- 
ciple of  criminal  law  in  this  country,  that  where  the  criminal  result 
of  an  attempt  is  not  accomplished  simply  because  of  an  obstruction 
in  the  way  of  the  thing  to  be  operated  upon,  and  these  facts  are  un- 
known to  the  aggressor  at  the  time,  the  criminal  attempt  is  committed. 
Thus  an  attempt  to  pick  one's  pocket  or  to  steal  from  his  person, 
when  he  has  uotliing  in  his  pocket  or  on  his  person,  completes  the 
offence  to  the  same  degree  as  if  he  had  money  or  other  personal  prop- 
erty which  could  be  the  subject  of  larceny.  State  v.  Wilson,  30 
Conn.  500  ;  Commonwealth  v.  McDonald,  5  Cush.  365  ;  People  v. 
Jones,  46  Mich.  441  ;  People  v.  Moran,  123  N.  Y.  254. 

Having  determined  that  appellant  was  guilty  of  an  unlawful  attempt 
to  kill,  was  such  attempt  coupled  with  the  present  ability  to  accom- 
plish  the  deed?  In  the  case  of  People  v.  Yslas,  27  Cal.  633,  this 
court  said:  "The  common-law  definition  of  an  assault  is  substan- 
tially the  same  as  that  found  in  our  statute."  Conceding  such  to  be 
the  fact,  we  cannot  indorse  those  authorities,  principally  P^nglish, 
which  hold  that  an  assault  may  be  committed  by  a  person  pointing 
in  a  threatening  manner  an  unloaded  gun  at  another ;  and  this,  too, 
regardless  of  the  fact  whether  the  party  holding  the  gun  thought  it 
was  loaded,  or  whether  the  part}'  at  whom  it  was  menacingly  pointed 
was  thereby  placed  in  great  fear.  Under  our  statute  it  cannot  be 
said  that  a  person  with  an  unloaded  gun  would  have  the  present 
ability  to  inflict  an  injury  upon  another  many  yards  distant,  however 
apparent  and  unlawful  his  attempt  to  do  so  might  be.  It  was  held, 
in  the  case  of  State  v.  Swails,  8  Ind.  524,  that  there  was  no  assault 
to  commit  murder  where   A   fires  a  gun  at  B  at  a  distance  of  forty 


110  PEOPLE    V.   LEE   KONG.  [CHAP.  IL 

feet,  with  intent  to  murder  him,  if  the  gun  is  in  fact  loaded  with 
powder  and  a  slight  cotton  wad,  although  A  believes  it  to  be  loaded 
with  powder  and  ball.  The  later  Indiana  cases  support  this  rule, 
although  in  Kunkle  v.  State,  32  Ind.  220,  the  court,  in  speaking  of 
the  Swails  case,  said  :  "  But  if  the  case  is  to  be  understood  as  laying 
down  the  broad  proposition  that  to  constitute  an  assault  .  .  .  with 
intent  to  commit  felony,  the  intent  and  the  present  ability  to  execute 
must  necessarily  be  conjoined,  it  does  not  command  our  assent  or 
approval,"  In  the  face  of  the  fact  that  the  statute  of  this  State  in 
terms  requires  that  in  order  to  constitute  an  assault  the  unlawful 
attempt  and  present  ability  must  be  conjoined,  Kunkle  v.  State,  32 
Ind.  220,  can  have  no  weight  here.  In  State  v.  Napper,  6  Nev.  115, 
the  court  reversed  the  judgment  upon  the  ground  that  the  people 
failed  to  prove  that  the  pistol  with  which  the  assault  was  alleged 
to  have  been  made  was  loaded,  and  that  consequently  there  was  no 
proof  that  the  defendant  had  the  present  ability  to  inflict  the 
injury. 

It  is  not  the  purpose  of  the  court  to  draw  nice  distinctions  between 
an  attempt  to  commit  an  offence  and  an  assault  with  intent  to  commit 
the  offence,  for  such  distinctions  could  only  have  the  effect  to  favor 
the  escape  of  criminals  from  their  just  deservings.  And  in  view  of 
the  fact  that  all  assaults  to  commit  felonies  can  be  prosecuted  as 
attempts,  we  can  see  no  object  in  carrying  the  discussion  of  the  sub- 
ject to  any  greater  lengths. 

In  this  case  the  appellant  had  the  present  ability  to  inflict  the  in- 
jury. He  knew  the  officer  was  upon  the  roof,  and  knowing  that  fact 
he  fired  through  the  roof  with  the  full  determination  of  killing  him. 
The  fact  that  he  was  mistaken  in  judgment  as  to  the  exact  spot  where 
his  intended  victim  was  located  is  immaterial.  That  the  shot  did 
not  fulfil  the  mission  intended  was  not  attributable  to  forbearance  or 
kindness  of  heart  upon  defendant's  part ;  neither  did  the  officer  es- 
cape by  reason  of  the  fact  of  his  being  so  far  distant  that  the  deadly 
missile  could  do  him  no  harm.  He  was  sufficiently  near  to  be  killed 
from  a  bullet  from  the  pistol,  and  his  antagonist  fired  with  the  intent 
of  killing  him.  Appellant's  mistake  as  to  the  policeman's  exact  loca- 
tion upon  the  roof  affords  no  excuse  for  his  act,  and  causes  the  act 
to  be  no  less  an  assault.  These  acts  disclose  an  assault  to  murder  as 
fully  as  though  a  person  should  fire  into  a  house  with  the  intention 
of  killing  the  occupant,  who  fortunately  escaped  the  range  of  the 
bullet.  See  Cowley  v.  State,  10  Lea,  282.  The  fact  that  the  shots 
were  directed  indiscriminately  into  the  house  rather  than  that  the 
intended  murderer  calculated  that  the  occupant  was  located  at  a  par- 
ticular spot,  and  then  trained  his  fire  to  that  point,  could  not  affect 
the  question.  The  assault  would  be  complete  and  entire  in  either 
case.  If  a  man  intending  murder,  being  in  darkness  and  guided  by 
sound  only,  should  fire,  and  the  bullet  should  pierce  the  spot  where 
the  party  was  supposed  to  be,  but  by  a  mistake  in  hearing  the  in- 


SECT.  IV.]  RESPUBLICA   V.    MALIN.  Ill 

teuded  victim  was  not  at  the  point  of  danger,  but  some  distance 
therefrom,  and  yet  within  reach  of  the  pistol-ball,  the  crime  of  assault 
to  commit  murder  would  be  made  out ;  for  the  unlawful  attempt  and 
the  present  ability  are  found  coupled  together.  If  appellant's  aim 
had  not  been  good,  or  if  through  fright  or  accident  when  pointing 
the  weapon  or  pulling  the  trigger,  or  if  the  ball  had  been  deflected  in 
its  course  from  the  intended  point  of  attack,  and  by  reason  of  the 
occurrence  of  any  one  of  these  contingencies  the  party  had  been  shot 
and  killed,  a  murder  would  have  been  committed.  Such  being  the 
fact,  the  assault  is  established. 

The  fact  of  itself  that  the  policeman  was  two  feet  or  ten  feet  from 
the  spot  where  the  fire  was  directed,  or  that  he  was  at  the  right  hand 
or  at  the  left  hand  or  behind  the  defendant  at  the  time  the  shot  was 
fired,  is  immaterial  upon  this  question.  That  element  of  the  case 
does  not  go  to  the  question  of  present  ability,  but  pertains  to  the 
unlawful  attempt. 

Let  the  judgment  and  order  be  affirmed. 

Patterson,  J.,   concurred. 

Harrisox,  J.,  concurring.  I  concur  in  the  judgment,  upon  the 
ground  that  upon  the  evidence  before  them  the  jury  have  determined 
that  the  uulawful  attempt  of  the  defendant  was  coupled  with  a  present 
ability  —  that  is,  an  ability  by  the  means  then  employed  by  him  in 
furtherance  of  such  attempt  —  to  commit  murder  upon  the  policeman.^ 


RESPUBLICA  V.  MALIN. 
Oyer  axd  Terminer,  Philadelphia.     1778. 

[Reported  1  Dallas,  33.] 

Indictment  for  high  treason.^  Tlie  prisoner,  mistaking  a  corps  of 
American  troops  for  British,  went  over  to  them.  And  now  the  Attor- 
ney-General offered  evidence  of  words  spoken  by  the  defendant,  to 
prove  this  mistake,  and  his  real  intention  of  joining  and  adhering  to 
the  enemy. 

Br  the  Court.  No  evidence  of  words  relative  to  the  mistake  of 
the  American  troops  can  be  admitted  ;  for  any  adherence  to  them, 
though  contrary  to  the  design  of  the  party,  cannot  possibly  come 
within  the  idea  of  treason. 

1  Ace.  State  v.  Mitchell  (Mo.),  71  S.  W.  175.  In  that  case  Gantt,  J.,  said  :  "  The 
intent  evidenced  by  the  tiring  into  the  bedroom  with  a  deadly  weapon,  accompanied 
by  a  present  capacity  in  defendant  to  murder  Warren  if  he  were  in  the  room,  and  the 
failure  to  do  so  only  because  Warren  happily  retired  upstairs  instead  of  in  the  bed 
into  which  defendant  fired,  made  out  a  perfect  case  of  an  attempt." 

*  The  statement  of  the  case  is  abridged,  and  part  only  of  the  opinion  is  given. 


112  PEOPLE    V.    JAFFE.  [C HAP.  II. 

PEOPLE  V.  JAFFE. 

Court  of  Appeals  of  New  York.     1906. 

[Reported  185  N.  Y.  497.] 

WiLLARD  Bartlett,  J.  The  indictment  charged  that  the  defendant 
on  the  6th  day  of  Oetobei-,  1902,  in  the  county  of  New  York,  feloni- 
ously received  twenty  yards  of  cloth  of  the  value  of  twenty-five  cents  a 
yard  belonging  to  the  copartnership  of  J.  W.  Goddard  &  Son,  know- 
ing that  the  said  property  had  been  feloniously  stolen,  taken  and  carried 
away  from  the  owners.  It  was  found  under  section  550  of  the  Penal 
Code,  which  provides  that  a  person  who  buys  or  receives  any  stolen 
property,  knowing  the  same  to  have  been  stolen,  is  guilty  of  criminall}^ 
receiving  such  property.  The  defendant  was  convicted  of  an  attempt 
to  commit  the  crime  charged  in  the  indictment.  The  proof  clearly 
showed,  and  the  district  attorney  conceded  upon  the  trial,  that  the 
goods  which  the  defendant  attempted  to  purchase  on  October  6th,  1902, 
had  lost  their  character  as  stolen  goods  at  the  time  when  they  were 
offered  to  the  defendant,  and  when  he  sought  to  buy  them.  In  fact 
the  property  had  been  restored  to  the  owners  and  was  wliolly  within 
their  control,  and  was  offered  to  the  defendant  by  their  authority  and 
through  their  agency.  The  question  presented  by  this  appeal,  there- 
fore, is  whether  upon  an  indictment  for  receiving  goods  knowing  them 
to  have  been  stolen  the  defendant  may  be  convicted  of  an  attempt  to 
commit  the  crime  where  it  appears  without  dispute  that  the  property 
which  he  sought  to  receive  was  not  in  fact  stolen  property. 

The  conviction  was  sustained  by  the  Appellate  Division  chiefly  upon 
the  authorit}'  of  the  numerous  cases  in  which  it  has  been  held  that  one 
may  be  convicted  of  an  attempt  to  commit  a  crime  notwithstanding  the 
existence  of  facts  unknown  to  him  which  would  have  rendered  the  com- 
plete perpetration  of  the  crime  itself  impossible.  Notably  among 
these  are  what  may  be  called  the  pickpocket  cases,  where  in  prosecu- 
tions for  attempts  to  commit  larceny  from  the  person  by  pocket  picking 
it  is  held  not  to  be  necessary  to  allege  or  prove  that  there  was  any- 
thing in  the  i)ocket  which  could  be  the  subject  of  larceny.  (Common- 
wealth V.  McDonald,  5  Cush.  365  ;  Rogers  v.  Commonwealth,  5  S.  & 
E.  463  ;  State  v.  Wilson,  30  Conn.  500;  People  v.  Moran,  123  N.  Y. 
254.)  Much  reliance  was  also  placed  in  the  opinion  of  the  learned 
Appellate  Division  upon  the  case  of  People  v.  Gardner  (144  N.  Y.  119), 
where  a  conviction  of  an  attempt  to  commit  the  crime  of  extortion  was 
upheld,  although  the  woman  from  whom  the  defendant  sought  to  obtain 
money  by  a  threat  to  accuse  her  of  a  crime  was  not  induced  to  pay  the 
money  by  fear,  but  was  acting  at  the  time  as  a  decoy  for  the  police, 
and  hence  could  not  have  been  subjected  to  the  influence  of  fear. 

In  passing  upon  the  question  here  presented  for  our  determination, 
it  is  important  to  bear  in  mind  precisely  what  it  was  that  the  defend- 


SECT.  IVo]  PEOPLE    V.   JAFFE.  113 

ant  attempted  to  do.  He  simply  made  an  effort  to  purchase  certain 
specific  pieces  of  clotli.  He  believed  the  cloth  to  be  stolen  property, 
but  it  was  not  such  in  fact.  The  purchase,  therefore,  if  it  had  been 
completely  effected,  could  not  constitute  the  crime  of  receiving  stolen 
property,  knowing  it  to  be  stolen,  since  there  could  be  no  such  thing  as 
knowledge  on  the  part  of  the  defendant  of  a  non-existent  fact,  although 
there  might  be  a  belief  on  his  part  that  the  fact  existed.  As  Mr. 
Bishop  well  says,  it  is  a  mere  truism  that  there  can  be  no  receiving  of 
stolen  goods  which  have  not  been  stolen.  (2  Bishop's  New  Crim.  Law, 
§  1140.)  It  is  equally  difficult  to  perceive  how  there  can  be  an  attempt 
to  receive  stolen  goods,  knowing  them  to  have  been  stolen,  when  they 
have  not  been  stolen  in  fact. 

The  crucial  distinction  between  the  case  before  us  and  the  pickpocket 
cases,  and  others  involving  the  same  principle,  lies  not  in  the  possi- 
bility or  impossibility  of  the  commission  of  the  crime,  but  in  the  fact 
that  in  the  present  case  the  act,  which  it  was  doubtless  the  intent 
of  the  defendant  to  commit,  would  not  have  been  a  crime  if  it  had 
been  consummated.  If  he  had  actually  paid  for  the  goods  which  he 
desired  to  buy,  and  received  them  into  his  possession,  he  would  have 
committed  no  offence  under  section  550  of  the  Penal  Code,  because  the 
very  definition  in  that  section  of  the  ofl;"ence  of  criminally  receiving  prop- 
erty makes  it  an  essential  element  of  the  crime  that  the  accused  shall 
have  known  the  property  to  have  been  stolen  or  wrongfully  appropriated 
in  such  manner  as  to  constitute  larceny.  This  knowledge  being  a  ma- 
terial ingredient  to  the  oflTence  it  is  manifest  that  it  cannot  exist  unless 
the  property  has  in  fact  been  stolen  or  larcenously  appropriated.  No 
man  can  know  that  to  be  so  which  is  not  so  in  truth  and  in  fact.  He 
may  believe  it  to  be  so,  but  belief  is  not  enough  under  this  statute.  In 
the  present  case  it  appeared  not  only  by  the  proof  l)ut  by  the  express 
concession  of  the  prosecuting  officer  that  the  goods  which  the  defendant 
intended  to  purchase  had  lost  their  character  as  stolen  goods  at  the 
time  of  the  proposed  transaction.  Hence,  no  matter  what  was  the 
motive  of  the  defendant,  and  no  matter  what  he  supposed,  he  could  do 
no  act  which  was  intrinsically  adapted  to  the  then  present  successful 
perpetration  of  the  crime  denounced  by  this  section  of  the  Penal  Code, 
because  neither  he  nor  an}'  one  in  the  world  could  know  that  the 
property  was  stolen  property,  inasmuch  as  it  was  not  in  fact  stolen 
property. 

In  the  pickpocket  cases  the  immediate  act  which  the  defendant  had 
In  contemplation  was  an  act  which  if  it  could  have  been  carried  out 
would  have  been  criminal,  whereas  in  the  present  case  the  immediate 
act  which  the  defendant  had  in  contemplation  (to  wit,  the  purchase  of 
the  goods  which  were  brought  to  his  place  for  sale)  could  not  have  been 
criminal  under  the  statute  even  if  the  purchase  had  been  completed, 
because  the  goods  had  not  in  fact  been  stolen,  but  were  at  the  time 
when  they  were  offered  to  him  in  the  custody  and  under  the  control 
of  the  true  owners. 


114  PEOPLE    V.    JAFFE.  [CHAP.   II. 

If  all  which  an  accused  person  intends  to  do  would,  if  done,  consti- 
tute no  crime  it  cannot  be  a  crime  to  attempt  to  do  with  the  same  pur- 
pose a  part  of  the  thing  intended.  (1  Bishop's  Crim.  Law  [7th  ed.], 
sec.  747.)  The  crime  of  which  the  defendant  was  convicted  necessa- 
rily consists  of  three  elements:  first,  the  act;  second,  the  intent;  and 
third,  the  knowledge  of  an  existing  condition.  There  was  proof 
tending  to  establish  two  of  these  elements,  the  first  and  second,  but 
none  to  establish  the  existence  of  the  third.  This  was  knowledge  of 
the  stolen  character  of  the  property  sought  to  be  acquired.  There 
could  be  no  such  knowledge.  Tiie  defendant  could  not  know  that  the 
property  possessed  the  character  of  stolen  property  when  it  had  not  in 
fact  been  acquired  by  theft. 

The  language  used  by  Ruger,  C.  J.,  in  People  v.  Moran  (123  N.  Y. 
254),  quoted  with  approval  by  Earl,  J.,  in  People  v.  Gardner  (144 
N.  Y.  119),  to  the  effect  that  "  the  question  whether  an  attempt  to  com- 
mit a  crime  has  been  made  is  determinable  solely  by  the  condition  of 
the  actor's  mind  and  his  conduct  in  the  attempted  consummation  of 
his  design,"  although  accurate  in  those  cases  has  no  application  to  a 
case  like  this,  where,  if  the  accused  had  completed  the  act  which  he 
attempted  to  do,  he  would  not  be  guilty  of  a  criminal  offence.  A  partic- 
ular belief  cannot  make  that  a  crime  which  is  not  so  in  the  absence  of 
such  belief.  Take,  for  example,  the  case  of  a  young  man  who  attempts 
to  vote,  and  succeeds  in  casting  his  vote  under  the  belief  that  lie  is  but 
twenty  years  of  age,  when  he  is  in  fact  over  twenty-one  and  a  qualified 
voter.  His  intent  to  commit  a  crime,  and  his  belief  that  he  was  com- 
mitting a  crime,  would  not  make  him  guilty  of  any  ofl'ence  under  these 
circumstances,  although  the  moral  turpitude  of  the  transaction  on  his 
part  would  be  just  as  great  as  it  would  if  he  were  in  fact  under  age.  So, 
also,  in  the  case  of  a  prosecution  under  the  statute  of  this  state,  which 
makes  it  rape  in  the  second  degree  for  a  man  to  perpetrate  an  act  of 
sexual  intercourse  with  a  female  not  his  wife  under  the  age  of  eighteen 
3'ears.  There  could  be  no  conviction  if  it  was  established  upon  the 
trial  that  the  female  was  in  fact  over  the  age  of  eighteen  years,  although 
the  defendant  believed  her  to  be  younger  and  intended  to  commit  the 
crime.  No  matter  how  reprehensible  would  be  his  act  in  morals,  it  would 
not  be  the  act  forbidden  by  this  particular  statute.  "  If  what  a  man 
contemplates  doing  would  not  be  in  law  a  crime,  he  could  not  be  said 
in  point  of  law  to  intend  to  commit  the  crime.  If  he  thinks  his  act 
will  be  a  crime,  this  is  a  mere  mistake  of  his  understanding  where  the 
law  holds  it  not  to  be  such,  his  real  intent  being  to  do  a  particular 
thing.  If  the  thing  is  not  a  crime  he  does  not  intend  to  commit  one, 
whatever  he  may  erroneously  suppose."  (1  Bishop's  Crim.  Law  [7th 
ed.,]  sec.  742.) 

The  judgment  of  the  Appellate  Division  of  the  Court  of  General 
Sessions  must  be  reversed  and  the  defendant  discharged  upon  this  in- 
dictment, as  it  is  manifest  that  no  conviction  can  be  had  thereunder. 
This  discharge,  however,  in  no  wise  affects  the  right  to  prosecute  the 


SECT.  IV,]  UNITED    STATES    V.    STEPHENS,  115 

defendant  for  other  offences  of  a  like  character,  concerning  which 
there  is  some  proof  in  the  record,  but  which  were  not  charged  in  the 
present  indictment. 

Chase,  J.  (dissenting).  I  dissent.  Defendant  having  with  knowl- 
edge repeatedly  received  goods  stolen  from  a  dry  goods  firm  by  one  of 
its  employees,  suggested  to  the  employee  that  a  certain  specified 
kind  of  cloth  be  taken,  he  was  told  by  the  employee  that  that  particular 
kind  of  cloth  was  not  kept  on  his  floor,  and  he  then  said  that  he  would 
take  a  roll  of  a  certain  Italian  cloth.  The  emploj-ee  then  stole  a  roll 
of  the  Italian  cloth  and  carried  it  away,  but  left  it  in  another  store  where 
he  could  subsequent!}'  get  it  for  delivery  to  the  defendant.  Before  it 
was  actually  delivered  to  the  defendant  the  employers  discovered  that 
the  employee  had  been  stealing  from  them,  and  the}'  accused  him  of 
the  thefts.  The  employee  then  confessed  liis  guilt,  and  told  them  of 
the  piece  of  cloth  that  had  been  stolen  for  the  defendant,  but  had  not 
actually  been  delivered  to  him.  The  roll  of  cloth  so  stolen  was  then 
taken  bj'  another  employee  of  the  firm,  and  it  was  arranged  at  the  police 
headquarters  that  the  employee  who  had  taken  the  cloth  should  deliver 
it  to  the  defendant,  which  he  did,  and  the  defendant  paid  the  employee 
about  one-half  the  value  thereof.  The  defendant  was  then  arrested  and 
this  indictment  was  thereafter  found  against  him.  That  the  defendant 
intended  to  commit  a  crime  is  undisputed.  I  think  the  record  shows  an 
attempt  to  commit  the  crime  of  criminally  receiving  property-  as  defined 
in  sections  550  and  34  of  the  Penal  Code,  within  the  decisions  of  this 
court  in  People  v.  Moran  (123  N.  Y.  254)  and  People  v.  Gardner  (144 
N.  Y.  119). 

CuLLEN,  C.  J.,  Gray,  Edward  T.  Bartlett,  Vann  and  Werner, 
JJ.,  concur  with  Willard  Bartlett,  J. ;  Chase,  J.,  dissents  in 
memorandum. 

Judgment  of  conviction  reversed,  etc.^ 


UNITED  STATES  v.  STEPHENS. 
Circuit  Court  of  United  States,  District  of  Oregon.     1882, 

\Re]>orted  8  Sawi/er,  116.1 

Deady,  J.^  On  March  30,  1882,  an  information  was  filed  by  the 
district  attorney,  accusing  tlie  defendant,  by  the  first  count,  of  the 
crime  of  introducing  spirituous  liquors  into  the  district  of  Alaska,  con- 
trary to  law  ;  and,  by  the  second  count,  of  the  crime  of  "  attempting  '' 

1  See  Marley  v.  State,  58  N.  J.  L.  207.  -  Ed. 

2  Part  of  the  opinion  only  is  printed.  —  Ed, 


116  UNITED   STATES   V.   STEPHENS.  [CHAP.  II. 

to  SO  introduce  such  liquors  into  said  district.^  The  defendant  de- 
murs to  the  information  because  it  does  not  state  facts  sufficient  to 
constitute  a  crime. 

Upon  the  argument  of  the  demurrer  it  was  abandoned  as  to  the  first 
count,  and  insisted  upon  as  to  the  second.  This  count  alleges  that  on 
July  14,  1879,  the  defendant,  being  in  the  district  of  Alaska,  wrote  and 
transmitted  a  letter  to  a  certain  firm  in  San  Francisco,  California, 
wherein  and  whereby  he  requested  said  firm  to  ship  and  send  to  him  at 
Fort  Wrangel,  in  said  district,  one  hundred  gallons  of  whiske}' ;  the 
defendant  then  well  knowing  that  said  firm  were  then  wholesale  dealers 
in  spirituous  liquors,  and  owned  and  possessed  said  one  hundred  gallons 
of  whiskey  ;  '"and  he  thereby  contriving  and  intending  to  introduce  the 
said  one  hundred  gallons  of  whiskey  into  the  said  district  of  Alaska." 

There  are  a  class  of  acts  which  mixy  be  fairly-  said  to  be  done  in  pur- 
suance of  or  in  combination  with  an  intent  to  commit  a  crime,  but  are 
not,  in  a  legal  sense,  a  part  of  it,  and  therefore  do  not  with  such  intent 
constitute  an  indictable  attempt ;  for  instance,  the  purchase  of  a  gun 
with  a  design  to  commit  murder,  or  t!ie  purchase  of  poison  with  the 
same  intent.  These  are  considered  in  the  nature  of  preliminary  prepara- 
tions, —  conditions,  not  causes,  —  and  although  coexistent  with  a  guilty' 
intent,  are  iniUfi"erent  in  their  character,  and  do  not  advance  the  con^ 
duct  of  the  party  beyond  the  sphere  of  mere  intent.  They  are,  it  is 
true,  the  necessar}'  conditions  without  which  the  shooting  or  poisoning 
could  not  take  place,  but  they  are  not,  in  the  eye  of  the  law,  the  cause 
of  either.  1  Whart.  C.  L.,  sees.  178,  181  ;  1  Bish.  C.  L.,  sec.  668  et 
seq.;  The  People  v.  Murray,  14  Cal.  160. 

Dr.  Wharton  says  {supra,  sec.  181)  :  "To  make  the  act  an  indict- 
able attempt,  it  must  be  a  cause  as  distinguished  from  a  condition ; 
and  it  must  go  so  far  that  it  would  result  in  the  crime  unless  frustrated 
by  extraneous  circumstances."  Bishop  sa3S  {supra,  sec.  669)  :  "It  is 
plain  that  if  a  man  who  has  a  wicked  purpose  in  his  heart  does  some- 
thing entirel}^  foreign  in  its  nature  from  that  purpose,  he  does  not  com- 
mit a  criminal  attempt  to  do  the  thing  proposed.  On  the  other  hand, 
if  he  does  what  is  exacth'  adapted  to  accomplish  the  evil  meant,  yet 
proceeds  not  far  enough  in  the  doing  for  the  cognizance  of  the  law,  he 
still  escapes  punishment.  Again,  if  he  does  a  thing  not  completel}',  as 
the  result  discloses,  adapted  to  accomplish  the  wrong,  he  may  under 
some  circumstances  be  punishable,  while  under  other  circumstances  he 
xna}'  escape.  And  the  difHculty  is  not  a  small  one,  to  lay  down  rules 
readily  applied,  which  shall  guide  the  practitioner  in  respect  to  the  cir- 
cumstances in  which  the  criminal  attempt  is  sufficient." 

In  The  People  v.  Murray,  supra,  the  defendant  was  indicted  for  an 
attempt  to  contract  an  incestuous  marriage,  and  was  found  guilty. 
From  the  evidence  it  appeared  that  he  intended  to  contract  such  mar- 
riage, that  he  eloped  with  his  niece  for  that  purpose,  and  requested  a 

1  This  was  made  criminal  by  Act  of  March  3,  1873  (17  Stat,  at  L.  530).  —  Ed. 


SECT.  IV,]  UNITED    STATES    V.    STEPHENS.  117 

third  person  to  get  a  magistrate  to  perform  tlie  ceremon}-.  Upon  an 
appeal  the  judgment  was  reversed.  Chief  Justice  Field,  deliverino'  tlie 
opinion  of  the  court,  said:  "■  It  (the  evidence)  shows  very  clearly  the 
intention  of  the  defendant ;  but  something  more  than  mere  intention  is 
pecessar}'  to  constitute  the  offence  charged.  Between  preparation  for 
the  attempt  and  the  attempt  itself,  there  is  a  wide  difference.  The 
preparation  consists  in  devising  or  ari'anging  the  means  or  measures 
neeessar}'  for  the  commission  of  tlie  offence  ;  the  attempt  is  the  direct 
movement  towards  the  commission  after  the  preparations  are  made 
.  .  .  ;  but  until  the  officer  was  engaged,  and  the  parties  stood  before 
him,  read}'  to  take  the  vows  appropriate  to  the  contract  of  marriage,  it 
cannot  be  said,  in  strictness,  that  the  attempt  was  made.  The  attempt 
contemplated  by  the  statute  must  be  manifested  by  acts  which  would 
end  in  tlie  consummation  of  the  particular  offence,  but  for  the  interven- 
tion of  circumstances  independent  of  tlie  will  of  the  party." 

In  the  case  under  consideration,  to  constitute  the  attempt  charged  in 
the  iiilorination  there  must  have  been  an  intent  to  commit  the  crime  of 
introducing  spirituous  liquors  into  Alaska,  combined  with  an  act  done 
in  pursuance  of  such  intention  that  apparently,  in  the  usual  course  of 
events,  would  have  resulted  in  such  introduction,  unless  interrupted  by 
extraneous  circumstances,  but  which  actually  fell  short  of  such  result. 

But  it  does  not  appear  that  anything  was  done  b}-  the  defendant 
towards  the  commission  of  the  intended  crime  of  introducing  spirituous 
liquors  into  Alaska,  but  to  offer  or  attempt  to  purchase  the  same  in 
San  Francisco.  The  written  order  sent  there  by  the  defendant  was,  in 
effect,  nothing  more  or  less  than  an  offer  l\v  him  to  purchase  the  one 
hundred  gallons  of  whiskey  ;  and  it  will  simplify  the  case,  to  regard 
him  as  being  present  at  the  house  of  the  San  Francisco  firm,  at  the 
time  his  order  reached  them,  seeking  to  purchase  the  liquor  with  the 
intent  of  committing  the  crime  of  introducing  the  same  into  Alaska. 

But  the  case  made  by  the  information  stops  here.  It  does  not  show 
that  he  bought  any  liquor.  Whether  he  changed  his  mind,  and  coun- 
termanded the  order  before  the  delivery  of  the  goods,  or  wliether  the 
firm  refused  to  deal  with  him,  does  not  appear. 

Now,  an  offer  to  purchase  whiskey,  with  the  intent  to  ship  it  to 
Alaska,  is,  in  any  view  of  the  matter,  a  mere  act  of  preparation,  of 
which  the  law  takes  no  cognizance.  As  the  matter  then  stood,  it  was 
impossible  for  the  defendant  to  attempt  to  introduce  this  liquor  into 
Alaska,  because  he  did  not  own  or  control  it.  It  was  simpl}'  an  attempt 
to  purchase,  —  an  act  harmless  and  indifferent  in  itself,  whatever  the 
purpose  with  which  it  was  done. 

But  suppose  the  defendant  had  gone  further,  and  actually  succeeded 
in  purchasing  the  liquor,  wherein  would  the  case  differ  from  that  of  the 
person  who  bought  the  gun  or  poison  with  intent  to  commit  murder, 
but  did  no  subsequent  act  in  execution  of  such  purpose?  In  all  essen- 
tials they  are  the  same. 

A  purchase  of  spirituous  liquor  at  San  Francisco  or  Portland,  either 


118  GLOVER   V.   COMMONWEALTH.  fCHAP.  II. 

in  person  or  by  written  order  or  application,  with  intent  to  commit  a 
crime  witli  tlie  same,  —  as  to  dispose  of  it  at  retail  without  a  license,  or 
to  a  minor,  or  to  introduce  it  into  Alaska,  —  is  merely  a  preparatory 
act,  indifferent  in  its  character,  of  which  the  law,  lacking  the  omni- 
science of  Deity,  cannot  take  cognizance. 

At  what  period  of  the  transaction  the  shipper  of  liquor  to  Alaska  is 
guilty  of  an  attempt  to  introduce  the  same  there,  is  not  very  easily 
determined.  Certainly  the  liquor  must  first  be  purchased  —  obtained 
in  some  way  —  and  started  for  its  illegal  destination.  But  it  is  doubt- 
ful whethei  the  attempt,  or  the  act  necessary  to  constitute  it,  can  be 
committed  until  the  liquor  is  taken  so  near  to  some  point  or  place  of 
"  the  mainland,  islands,  or  waters"  of  Alaska  as  to  render  it  conven- 
ient to  introduce  it  from  there,  or  to  make  it  manifest  that  such  was  the 
present  purpose  of  the  parties  concerned.  But  this  is  a  mere  sug- 
gestion ;  and  each  case  must  be  determined  upon  its  own  circumstances. 

The  demurrer  is  sustained  to  the  second  count,  and  overruled  as  to 
the  first. 


GLOVER  V.  COMMONWEALTH. 
Supreme  Court  of  Appeals  of  Virginia.     1889. 

[Reported  86  Virginia,  382.] 

Lewis,  P.,  delivered  the  opinion  of  the  court. 

Among  the  exceptions  taken  by  the  prisoner  at  the  trial  was  one  to 
the  refusal  of  the  court  to  instruct  the  jury  as  follows:  "If  the  jury 
believe  from  the  evidence  that  the  prisoner  at  the  bar  intended  to  com- 
mit a  rape  on  the  prosecutrix,  Berta  Wright,  l)ut  before  the  act  was 
finally  executed,  he  voluntarily  and  freely  abandoned  it,  they  are  to 
find  a  verdict  of  not  guilty."  ^ 

This  exception  is  not  well  taken.  To  have  given  the  instruction 
would  have  been  equivalent  to  telling  the  jury  that  upon  an  indictment 
for  rape,  the  accused  cannot  be  legally  convicted  of  an  attempt  to  com- 
mit a  rape,  which  is  not  the  law.  The  court,  therefore,  did  not  err  in 
refusing  to  give  it,  nor  did  it  err  in  subsequently  instructing  the  jury, 
as  in  effect  it  did,  that  upon  an  indictment  for  rape,  the  accused  may 
be  found  guilty  of  an  attempt  to  commit  a  rape,  which  is  in  accordance 
with  the  law  in  this  State.  Givens  v.  Commonwealth,  29  Gratt.  830  ; 
Mings  V.  Same,  85  Va.  638.  Indeed,  the  statute,  now  brought  into 
section  4044  of  the  Code,  expressly  enacts  that  "  on  an  indictment  for 
felony,  the  jury  may  find  the  accused  not  guilty  of  the  felon3%  but  guilty 
of  an  attempt  to  commit  such  felony  ;  and  a  general  verdict  of  not 
guilty  upon  such  indictment  shall  be  a  bar  to  a  subsequent  prosecution 
for  an  attempt  to  commit  such  felon}'." 

*  Only  so  much  of  the  opinion  as  refers  to  this  exception  is  printed. 


SECT.  IV.]  COMMONWEALTH   V.   KENNEDY.  119 

An  attempt  in  criminal  law  is  an  apparent  unfinislied  crime,  and 
hence  is  compounded  of  two  elements,  viz. :  (1)  The  intent  to  commit  a 
crime  ;  and  (2)  a  direct  act  done  towards  its  commission,  but  falling 
short  of  the  execution  of  the  ultimate  design.  It  need  not,  therefore, 
be  the  last  proximate  act  to  the  consummation  of  the  crime  in  contem- 
plation, but  is  sufficient  if  it  be  an  act  apparently  adapted  to  produce 
the  result  intended.  It  must  be  something  more  than  mere  prepara- 
tion.    Uhl's  Case,  6  Gratt.  706  ;  Hicks'  Case,  86  Va.  223. 

Hence,  when  the  prisoner  took  the  prosecutrix  into  the  stable,  and 
there  did  the  acts  above  mentioned,  the  attempt  to  commit  a  rape  was 
complete  ;  for  there  was  the  unlawful  intent  accompanied  by  acts  done 
towards  the  commission  of  the  intended  crime,  but  falling  short  of  its 
commission.  Indeed,  it  is  not  denied  that  there  was  such  attempt,  but 
it  is  contended  —  and  such  was  the  main  defence  at  the  trial  —  that  the 
subsequent  voluntary  abandonment  of  the  criminal  purpose  cleansed 
the  prisoner  of  all  crime,  so  far  as  the  attempt  was  concerned.  But 
this  is  a  mistaken  view.  For,  on  the  contrary,  it  is  a  rule,  founded  in 
reason  and  supported  by  authority,  that  if  a  man  resolves  on  a  criminal 
enterprise,  and  proceeds  so  far  in  it  that  his  act  amounts  to  an  indict- 
able attempt,  it  does  not  cease  to  be  such,  though  he  voluntarily  aban- 
dons the  evil  purpose. 

In  Lewis  lu  The  State,  35  Ala.  380,  which  was  an  indictment  for  an 
attempt  to  commit  a  rape,  it  was  ruled  by  the  Supi-erae  Court  of  Alabama 
that  if  the  attempt  was  in  fact  made,  and  had  progressed  far  enough  to 
put  the  prosecutrix  in  terror  and  render  it  necessary  for  her  to  save 
herself  from  the  consummation  of  the  attempted  outrage  b}^  flight,  then 
the  attempt  was  complete,  though  the  prisoner  had  not  in  fact  touched 
her ;  and  that  an  after-abandonment  b}'  the  prisoner  of  his  wicked  pur- 
pose could  not  purge  the  crime.  And  there  are  man}-  other  authorities 
to  the  same  effect.  See  1  Bish.  Crim.  Law  (6th  ed.),  sec.  732,  and 
cases  cited. 


COMMONWEALTH   v.   KENNEDY. 

SupBEME  Judicial  Court  of  Massachusetts.    1897. 

[Reported  170  3fass  18.] 

Holmes,  J.^  The  first  count  is  for  mingling  poison  with  tea,  with 
intent  to  kill  one  Albert  F.  Learoyd.  Pub.  Sts.  c.  202,  §  32.  The 
second  count  is  for  an  attempt  to  commit  murder  b}'  poisoning.  Pub. 
Sts.  c.  202,  §  2L  Whether  the  first  count  includes  the  matter  of  the 
second,  with  the  eflfect  that,  even  if  the  motion  to  quash  the  second 
count  should  have  been  granted,  the  verdict  as  rendered  would  stand 
on  the  first  count  (Commonwealth  v.  Nichols,  134  Mass.  531,  536, 
537),  need  not  be  decided,  as  we  are  of  opinion  that  the  motion  to 
quash  properly  was  overruled. 

^  Only  so  much  of  the  opinion  as  discusses  the  law  of  attempt  is  given.  —  Ed. 


120  COMMONWEALTH   V.    KENNEDY.  [CHAP,  U. 

The  second  count  alleges  in  substance  that  the  defendant  feloniousl}', 
■wilfull}',  and  maliciousl}'  attempted  to  murder  Learoyd  by  placing  a 
quantity  of  deadly'  poison  known  as  "rough  on  rats,"  known  to  the 
defendant  to  be  a  deadly  poison,  upon,  and  causing  it  to  adhere  to  the 
under  side  of  the  crossbar  of  a  cup  of  Learoyd's  known  as  a  mustache 
cup,  the  cup  being  then  empty,  with  the  intent  that  Learoyd  should 
thereafter  use  the  cup  for  drinking  while  the  poison  was  there,  and 
should  swallow  the  poison.  The  motion  to  quash  was  argued  largely 
on  the  strength  of  some  cases  as  to  what  constitutes  an  "administer- 
ing" of  poison,  which  have  no  application,  but  the  argument  also 
touched  another  question,  which  always  is  present  in  cases  of  attempts, 
and  which  requires  a  few  words,  namely,  how  nearly  the  overt  acts 
alleged  approached  to  the  achievement  of  the  substantive  crime 
attempted. 

Notwitlistanding  Pub.  Sts.  c.  210,  §  8,  we  assume  that  an  act  may 
be  done  which  is  expected  and  intended  to  accomplish  a  crime,  which  is 
not  near  enough  to  the  result  to  constitute  an  attempt  to  commit  it,  as 
in  the  classic  instance  of  shooting  at  a  post  supposed  to  be  a  man.  As 
the  aim  of  the  law  is  not  to  punish  sins,  but  is  to  prevent  certain  exter- 
nal results,  the  act  done  must  come  prett}'  near  to  accomplishing  that 
result  before  the  law  will  notice  it.  But,  on  the  other  hand,  irrespective 
of  the  statute,  it  is  not  necessary  that  the  act  should  be  such  as  inevit- 
abh'  to  accomplish  the  crime  by  the  operation  of  natural  forces,  but  for 
some  casual  and  unexpected  interference.  It  is  none  the  less  an 
attempt  to  shoot  a  man  that  the  pistol  which  is  fired  at  his  head  is  not 
aimed  straight,  and  therefore  in  the  course  of  nature  cannot  hit  him. 
Usually  acts  which  are  expected  to  bring  about  the  end  without  further 
interference  on  the  part  of  the  criminal  are  near  enough,  unless  the 
expectation  is  very  absurd.  In  this  case  the  acts  are  alleged  to  have 
been  done  with  intent  that  Learoyd  should  swallow  the  poison,  and,  by 
implication,  with  intent  to  kill  him.  See  Commonwealth  v.  Adams, 
127  Mass,  15,  17.  Intent  imports  contemplation,  and  more  or  less 
expectation,  of  the  intended  end  as  the  result  of  the  act  alleged.  If  it 
appeared  in  the  count,  as  it  did  in  the  evidence,  that  the  habits  of 
Learoyd  and  the  other  circumstances  were  such  that  the  defendant's 
expectation  that  he  would  use  the  cup  and  swallow  the  poison  was  well 
grounded,  there  could  be  no  doubt  that  the  defendant's  acts  were  near 
enough  to  the  intended  swallowing  of  the  poison,  and,  if  the  dose  was 
large  enough  to  kill,  that  they  were  near  enough  to  the  accomplishment 
of  the  murder.  But  the  grounds  of  the  defendant's  expectation  are 
not  alleged,  and  the  strongest  argument  for  the  defence,  as  it  seems  to 
us,  would  be  that,  so  far  as  this  count  goes,  his  expectation  may  have 
been  unfounded  and  unreasonable.  But  in  view  of  the  nature  of  the 
crime  and  the  ordinary  course  of  events,  we  are  of  opinion  that  enough 
is  alleged  when  the  defendant's  intent  is  shown.  The  cup  belonged  to 
Learoyd,  and  the  defendant  expected  that  he  would  use  it.  To  allow 
him  immunity,  on  the  ground  that  this  part  of  his  expectation  was  ill 


SECT.  IV.]  COMMONWEALTH    V.    KENNEDY.  121 

grounded,  would  be  as  unreasonable  as  to  let  a  culprit  off  because  he 
was  not  warranted  in  thinking  that  his  pistol  was  pointed  at  the  man 
he  tried  to  shoot.     A  more  important  point  is  that  it  is  not  alleged  in 
terms  that  the  dose  was  large  enough  to  kill,  unless  we  take  judicial 
notice  of  the  probable  effect  of  a  teaspoonf  ul  of  "  rough  on  rats  "  ;  and 
this  may  be  likened  to  the  case  of  firing  a  pistol  supposed  to  be  loaded 
with  ball,  but  in  fact  not  so,  or  to  administering  an  innocent  substance 
supposing  it  to  be  poison.     State  v.  S wails,   8  Ind.   524,    and   note. 
State  V.  Clarissa,  11  Ala.  57.     There  is  a  difference  between  the  case 
of  an  attempt  and  a  murder.     In  the  latter  case  the  event  shows  the 
dose  to  have  been  sufficient,  without  an  express  allegation.     But  we 
are  of  opinion  that  this  objection  cannot  be  maintained.     Every  ques- 
tion of  proximity  must  be  determined  by  its  own  circumstances,  and 
analogy  is  too  imperfect  to  give  much  help.     Any  unlawful  application 
of  poison  is  an  evil  which  threatens  death,  according  to  common  appre- 
hension, and  the  gravity  of  the  crime,  the  uncertainty  of  the  result, 
and  the  seriousness  of  the  apprehension,  coupled  with  the  great  harm 
likelv  to  result  from  poison  even  if  not  enough  to  kill,  would  warrant 
holding  the  liability  for  an  attempt  to  begin  at  a  point  more  remote 
from  the  possibility  of  accomplishing  what  is  expected  than  might  be 
the  case  with  lighter  crimes.     But  analogy  does  not  require  this  con- 
sideration.    The  case  cited  as  to  firing  a  pistol  not  loaded  with  ball  has 
been  qualified  at  least  by  a  later  decision,  Kunkle  v.  State  32  Ind. 
220,  229,  a  case  of  shooting  with  shot  too  small  to  kill.     And  even  in 
less  serious  crimes  (especially  in  view  of  Pub.  Sts.  c.   210,  §  8),  im- 
possibility of  achievement  is  not  necessarily  a  defence,  for  instance,  in 
an   attempt   to   procure    an    abortion    upon    a   woman    not    pregnant. 
Commonwealth  v.  Taylor,  132  Mass.  261.     Commonwealth  r.  Tibbetts, 
157  Mass.  519.     So  in  an  attempt  to  pick  a  pocket  which  is  empty. 
Commonwealth  v.  McDonald,  5  Cush.  365.     See  also  Commonwealth 
V.  Jacobs,  9  Allen,  274.     In  the  case  of  crimes  exceptionally  dealt  with 
or  greatly  feared,  acts  have  been  punished  which  were  not  even  ex- 
pected to  effect  the  substantive  evil  unless  followed  by  other  criminal 
acts ;  e.  (/.,  in  the  case  of  treason,  Foster,  196  ;  King  v.  Cowper,  5  Mod. 
206  ;  or  in  that  of  pursuit  by  a  negro,  with  intent  to  commit   rape. 
Lewis  V.  State,  35  Ala.   380.     Compare  Regina  v.  Eagleton,  Dears. 
C.  C.  515,  538;  S.   C.   6  Cox,  C.   C.  559,  571.     A  ftimiliar  statutory 
illustration  of  this  class  is  to  be  found  in  the  enactments  with  regard  to 
having  counterfeit  bills  in  one's  possession  with  intent  to  pass  them. 
Pub.  Sts.   c.  204,  §  8  (see  Regina  v.  Roberts,  Dears.  C.  C.  539,  550, 
551),  and  one  which  is  interesting  historically  in  the  English  statutes 
intended   to  keep  secret  the  machinery  used  in  modern  manufacture. 
Sts.  14  Geo.  III.  c.  71,  §  5;  21  Geo.  III.  c.  37,  §  6.     The  general  pro- 
vision of  Pub.  Sts.  c.   210,  §  8,  already  referred  to,  long  has  been  on 
the  books.     A  case  having  some  bearing  on  the  present  is  State  v. 
Glover,  27  S.  C.  602.     For  these  reasons,  we  are  of  opinion  that  the 
motion  to  quash  the  second  count  properly  was  overruled. 


122  COMMONWEALTH   V.    PEASLEE.  [CHAP.  IL 


COMMONWEALTH   v.   PEASLEE. 

Supreme  Judicial  Court  of  Massachusetts.     1901. 

[Reported  177  Mass.  267.] 

Holmes,  C.  J.  This  is  an  indictment  for  an  attempt  to  burn  a  building 
and  certain  goods  therein,  with  intent  to  injure  the  insurers  of  the  same. 
Pub.  Sts.  c.  210,  §  8.  The  substantive  offence  alleged  to  have  been 
attempted  is  punished  by  Pub.  Sts.  c.  203,  §  7.  The  defence  is  that 
the  overt  acts  alleged  and  proved  do  not  amount  to  an  offence.  It 
was  raised  by  a  motion  to  quash  and  also  by  a  request  to  the  judge  to 
direct  a  verdict  for  the  defendant.  We  will  consider  the  case  in  the 
first  place  upon  the  evidence,  apart  from  an}'  question  of  pleading,  and 
afterwards  will  take  it  up  in  connection  with  the  indictment  as  actually 
drawn. 

The  evidence  was  that  the  defendant  had  constructed  and  arranged 
combustibles  in  the  building  in  such  a  wa}'  that  they  were  ready  to  be 
lighted,  and  if  lighted  would  have  set  fire  to  the  building  and  its  con- 
tents. To  be  exact,  the  plan  would  have  required  a  candle  which  was 
standing  on  a  shelf  six  feet  away  to  be  placed  on  a  piece  of  wood  in  a 
pan  of  turpentine,  and  lighted.  The  defendant  offered  to  pay  a  young 
man  in  his  employment  if  he  would  go  to  the  building,  seemingly  some 
miles  from  the  place  of  the  dialogue,  and  carry  out  the  plan.  This  was 
refused.  Later  the  defendant  and  the  3'oung  man  drove  toward  the 
building,  but  when  within  a  quarter  of  a  mile  the  defendant  said  that 
he  had  changed  his  mind  and  drove  away.  This  is  as  near  as  he  ever 
came  to  accomplishing  what  he  had  in  contemplation. 

The  question  on  the  evidence,  more  precisely  stated,  is  whether  the 
defendant's  acts  come  near  enough  to  the  accomplishment  of  the  sub- 
stantive offence  to  be  punishable.  The  statute  does  not  punish  every 
act  done  toward  the  commission  of  a  crime,  but  only  such  acts  done  in 
an  attempt  to  commit  it.  The  most  common  types  of  an  attempt  are 
either  an  act  which  is  intended  to  bring  about  the  substantive  crime 
and  which  sets  in  motion  natural  forces  that  would  bring  it  about  in 
the  expected  course  of  events  but  for  an  unforeseen  interruption,  as  in 
this  case  if  the  candle  had  been  set  in  its  place  and  lighted  but  had 
been  put  out  b}'  the  police,  or  an  act  which  is  intended  to  bring  about 
the  substantive  crime  and  would  bring  it  about  but  for  a  mistake  of 
judgment  in  a  matter  of  nice  estimate  or  experiment,  as  when  a  pistol 
is  fired  at  a  man  but  misses  him,  or  when  one  tries  to  pick  a  pocket 
which  turns  out  to  be  empty.  In  either  case  the  would-be  criminal  has 
done  his  last  act. 

Obviously  new  considerations  come  in  when  further  acts  on  the  part 
of  the  person  who  has  taken  the  first  steps  are  necessary  before  the 
substantive  crime  can  come  to  pass.  In  this  class  of  cases  there  is 
still  a  chance  that  the  would-be  criminal  may  change  his  mind.     In 


SECT.  IV.]  COMMONWEALTH    V.    PEASLEE.  123 

strictness,  such  first  steps  cannot  be  described  as  an  attempt,  because 
that  word  suggests  an  act  seemingly  sufficient  to  accomplish  the  end, 
and  has  been  supposed  to  have  no  other  meaning.  People  v.  Murray, 
14  Cal.  159,  160.  That  an  overt  act,  although  coupled  with  an 
intent  to  commit  the  crime,  commonly  is  not  punishable  if  further  acts 
are  contemplated  as  needful,  is  expressed  in  the  familiar  rule  that 
preparation  is  not  an  attempt.  But  some  preparation  may  amount  to 
an  attempt.  It  is  a  question  of  degree.  If  the  preparation  comes  very 
near  to  the  accomplishment  of  the  act,  the  intent  to  complete  it  renders 
the  crime  so  probable  that  the  act  will  be  a  misdemeanor,  although 
there  is  still  a  locus  penitentice  in  tlie  need  of  a  further  exertion  of  the 
will  to  complete  the  crime.  As  was  observed  in  a  recent  case,  the 
degree  of  proximity  held  sufficient  may  vary  with  circumstances,  includ- 
ing among  other  things  the  apprehension  which  the  particular  crime  is 
calculated  to  excite.  Commonwealth  v.  Kennedy,  170  Mass.  18,  22. 
(See  also  Commonwealth  v.  Willard,  22  Pick.  476.)  A  few  instances 
of  liability  of  this  sort  are  mentioned  on  the  page  cited. 

As  a  further  illustration,  when  the  servant  of  a  contractor  had  de- 
livered short  rations  of  meat  by  the  help  of  a  false  weight  which  he  had 
substituted  for  the  true  one,  intending  to  steal  the  meat  left  over,  it  was 
held  by  four  judges,  two  of  whom  were  Chief  Justice  Erie  and  Mr. 
Justice  Blackburn,  that  he  could  be  convicted  of  an  attempt  to  steal. 
Regina  v.  Cheeseman,  L.  &  C.  140  ;  S.  C.  10  W.  R.  225.  So  lighting 
a  match  with  intent  to  set  fire  to  a  haystack,  although  the  prisoner 
desisted  on  discovering  that  he  was  watched.  Regina  v.  Taylor,  1 
F.  &  F.  511.  So  getting  into  a  stall  with  a  poisoned  potato,  intending 
to  give  it  to  a  horse  there,  which  the  prisoner  was  prevented  from  doing 
by  his  arrest.  Commonwealth  v.  McLaughlin,  105  Mass.  460.  See 
Clark  V.  State,  86  Tenn.  511.  So  in  this  Commonwealth  it  was  held 
criminal  to  let  a  house  to  a  woman  of  ill  fame  with  intent  that  it  should 
be  used  for  purposes  of  prostitution,  although  it  would  seem  that  the 
finding  of  intent  meant  only  knowledge  of  the  intent  of  the  lessee. 
Commonwealth  v.  Harrington,  3  Pick.  26.  See  Commonwealth  v. 
Willard,  22  Pick.  476,  478.  Compare  Brockway  v.  People,  2  Hill, 
558,  562.  The  same  has  been  held  as  to  paying  a  man  to  burn  a  barn, 
wliether  well  laid  as  an  attempt  or  more  properly  as  soliciting  to  com- 
mit a  felony.  Commonwealth  v.  Flags,  135  Mass.  545,  549.  State  v. 
Bowers,  35  So.  Car,  262.  Compare  Regina  v.  Williams,  1  C.  &  K. 
589;  S.  C.  1  Denison,  39.  McDade  v.  People,  29  Mich.  50,  56. 
Stabler  v.  Commonwealth,  95  Penn.  St.  318.  Hicks  v.  Commonwealth, 
86  Va.  223. 

On  the  other  hand,  making  up  a  false  invoice  at  the  place  of  expor- 
tation with  intent  to  defraud  the  revenue  is  not  an  offence  if  not  followed 
up  by  using  it  or  attempting  to  use  it.  United  States  u.  Twenty-eight 
Packages,  Gilpin,  306,  324.  United  States  v.  Riddle,  5  Cranch,  311. 
So  in  People  v.  Murray,  14  Cal.  159,  the  defendant's  elopement  with 
his  niece  and  his  requesting  a  third  person  to  bring  a  magistrate  to 


124  COMMONWEALTH    V.    PEASLEE.  [CHAP.  IL 

perform  the  marriage  ceremony,  was  held  not  to  amount  to  an  attempt 
to  contract  the  marriage.  But  the  ground  on  which  this  last  decision 
■was  put  clearly  was  loo  broad.  And  however  it  may  be  at  common 
law,  under  a  statute  like  ours  punishing  one  who  attempts  to  commit  a 
crime  "and  in  such  attempt  does  any  act  towards  the  commission  of 
such  offence"  (Pub.  Sts.  c.  210,  §  8),  it  seems  to  be  settled  elsewhere 
that  the  defendant  could  be  convicted  on  evidence  like  the  present. 
People  V.  Bush,  4  Hill,  133,  134.  McDermott  v.  People,  5  Parker  Cr. 
Rep.  102.  Griffin  v.  State,  26  Ga.  493.  State  r.  Hayes,  78  Mo.  307, 
316.  See  Commonwealth  v.  Willard,  22  Pick.  476.  People  v.  Bush  is 
distinguished  in  Stabler  v.  Commonwealth  as  a  decision  upon  the 
words  quoted.     95  Penn.  St.  322. 

Under  the  cases  last  cited  we  assume  tliat  there  was  evidence  of  a 
crime  and  perhaps  of  an  attempt, — the  latter  question  we  do  not 
decide.  Nevertheless,  on  the  pleadings  a  majority  of  the  court  is  of 
opinion  that  the  exceptions  must  be  sustained.  A  mere  collection  and 
preparation  of  materials  in  a  room  for  the  purpose  of  setting  fire  to 
them,  unaccompanied  by  any  present  intent  to  set  the  fire,  would  be 
too  remote.  If  the  accused  intended  to  rely  upon  his  own  liands  to  the 
end,  he  must  be  shown  to  have  had  a  present  intent  to  accomplish  the 
crime  without  much  delay,  and  to  have  had  this  intent  at  a  time  and  place 
where  he  was  able  to  carry  it  out.  We  are  not  aware  of  any  carefully 
considered  case  that  has  gone  further  than  this.  We  assume  without 
deciding  that  that  is  the  meaning  of  tlie  indictment,  and  it  would  have 
been  proved  if  for  instance  the  evidence  had  been  that  tlie  defendant 
had  been  frightened  by  the  police  as  he  was  about  to  light  the  candle. 
On  the  other  hand,  if  the  offence  is  to  be  made  out  by  showing  a  pre- 
paration of  the  room  and  a  solicitation  of  some  one  else  to  set  the  fire, 
which  solicitation  if  successful  would  have  been  the  defendant's  last 
act,  the  solicitation  must  be  alleged  as  one  of  the  overt  acts.  It  was 
admissible  in  evidence  on  the  pleadings  as  they  stood  to  show  the 
defendant's  intent,  but  it  could  not  be  relied  on  as  an  overt  act  unless 
set  out.  The  necessity  that  the  overt  acts  should  be  alleged  has  been 
taken  for  granted  in  our  practice  and  decisions  (see  e.  g.,  Common- 
wealth V.  Sherman,  105  Mass.  169;  Commonwealth  v.  McLaughlin, 
105  Mass.  460,  463;  Commonwealths.  Shedd,  140  Mass.  451,  453), 
and  is  expressed  in  the  forms  and  directions  for  charging  attempts 
appended  to  St.  1899,  c.  409,  §  28  and  §  2.  Commonwealth  v.  Clark, 
6  Gratt.  675.  State  v.  Colvin,  90  No.  Car.  717.  The  solicitations 
were  alleged  in  McDermott  v.  People.  In  New  York  it  was  not  neces- 
sary to  lay  the  overt  acts  relied  upon.  Mackesey  v.  People,  6  Parker 
Cr.  Rep.  114,  117,  and  New  York  cases  supra.  See  3  Encyc.  PI.  & 
Pr.,  "  Attempts,"  98.  A  valuable  collection  of  authorities  concerning 
the  crime  will  be  found  under  the  same  title  in  3  Am.  &  Eng.  Encyc. 
of  Law  (2d  ed.).  If  the  indictment  had  been  properly  drawn  we  have 
no  question  that  the  defendant  might  have  been  convicted. 

Exceptions  sustained. 


SECT.  IV.  ]  WALSH   V.   PEOPLE.  125 

WALSH  V.  PEOPLE. 
Supreme  Court  of  Illinois.     1872. 

[Reported  65  Illinois,  58.] 

Mr.  Justice  Thornton  delivered  the  opinion  of  the  court :  — ■ 

The  defendant  below  was  an  alderman  of  the  Common  Council  of 
the  city  of  Chicago.  As  such,  he  was  indicted  for  a  proposal,  made 
by  himself,  to  receive  a  bribe  to  influence  his  action  in  the  discharge 
of  his  duties. 

The  indictment  is,  in  form,  an  indictment  at  common  law  ;  and  it  is 
conceded  that  the  statute  has  not  created  such  an  offence  against  an 
alderman.  Our  criminal  code  has  made  it  an  offence  to  propose,  or 
agree  to  receive,  a  bribe,  on  the  part  of  certain  officers ;  but  an  alder- 
man is  not,  either  in  terms  or  by  construction,  included  amongst  them. 
Rev.  Stat.  1845,  p.  167,  s.  87. 

It  is  contended  that  the  act  charged  does  not  fall  within  any  of  the 
common  law  definitions  of  bribery  ;  that  no  precedent  can  be  found 
for  such  an  offence,  and  that,  as  propositions  to  receive  bribes  have 
probably  often  been  made,  and  as  no  case  can  be  found  in  which  they 
were  regarded  as  criminal,  the  conclusion  must  follov/  that  the  offence 
charged  is  no  offence. 

The  weakness  of  the  conclusion  is  in  the  assumption  of  a  premise 
which  may  or  may  not  be  true.  This  particular  phase  of  depravity 
may  never  before  have  been  exhibited  ;  and  if  it  had  been,  a  change 
might  be  so  suddenly  made,  by  an  acceptance  of  the  offer  and  a  con- 
currence of  the  parties,  as  to  constitute  the  offence  of  bribery,  which 
consists  in  the  receiving  any  undue  reward  to  incline  the  party  to  act 
contrary  to  the  known  rules  of  honesty  and  integrity. 

But  the  character  of  a  particular  offence  cannot  fairly  be  determined 
from  the  fact  that  an  offence  exactly  analogous  has  not  been  described 
in  the  books.  We  must  test  the  criminality  of  the  act  by  known  prin- 
ciples of  law. 

At  common  law,  bribery  is  a  grave  and  serious  offence  against  public 
justice  ;  and  the  attempt  or  offer  to  bribe  is  likewise  criminal. 

A  promise  of  money  to  a  corporator,  to  vote  for  a  mayor  of  a  cor- 
poration, was  punishable  at  common  law.  Rex  v.  Plympton,  2  Lord 
Raym.  1377. 

The  attempt  to  bribe  a  privy  councillor,  to  procure  an  office,  was  an 
offence  at  common  law.  Rex  ?^  Vaughan,  4  Burr.  2494.  In  that  case, 
Lord  Mansfield  said:  "Wherever  it  is  a  crime  to  take,  it  is  a  crime 
to  give.  They  are  reciprocal.  And  in  many  cases,  especially  in  bribery 
at  elections  to  parliament,  the  attempt  is  a  crime.  It  is  complete  on 
his  side  who  oft'ers  it." 

Why  is  the  mere  unsuccessful  attempt  to  bribe  criminal  ?  The  offi- 
cer refuses  to  take  the  offered  reward,  and  his  integrity  is  untouched, 


126  WALSH    V.   PEOPLE.  [CHAP.  II, 

his  conduct  uninfluenced  by  it.  The  reason  for  the  law  is  plain.  The 
offer  is  a  sore  temptation  to  the  wealv  or  the  depraved.  It  tends  to 
corrupt ;  and  as  the  law  abhors  the  least  tendency  to  corruption,  it 
punishes  the  act  which  is  calculated  to  debase,  and  which  may  aft'ect 
prejudicially  the  morals  of  the  community. 

The  attempt  to  bribe  is,  then,  at  common  law  a  misdemeanor ;  and 
the  person  making  the  offer  is  liable  to  indictment  and  punishment. 

What  are  misdemeanors  at  common  law?  Wharton,  in  his  work  on 
criminal  law,  p.  74,  says:  "Misdemeanors  comprise  all  offences,  lower 
than  felonies,  which  may  be  the  subject  of  indictment.  They  are  divided 
into  two  classes  :  first,  such  as  are  mala  i?i  se,  or  penal  at  common 
law  ;  and  secondl3^  such  as  are  mala  prohibita,  or  penal  by  statute. 
Whatever,  under  the  first  class,  mischievously  aff"ects  the  person  or 
property  of  another,  or  openly  outrages  decency,  or  disturbs  public 
order,  or  is  injurious  to  public  morals,  or  is  a  breach  of  official  duty, 
when  done  corruptly,  is  the  subject  of  indictment." 

In  the  case  of  The  King  v.  Iliggins,  2  P^ast,  5,  the  defendant  was 
indicted  for  soliciting  and  inciting  a  servant  to  steal  his  master's  chat- 
tels. There  was  no  jjroof  of  any  overt  act  towards  carrying  the  intent 
into  execution,  and  it  was  argued,  in  behalf  of  the  prisoner,  that  the 
solicitation  was  a  mere  fruitless,  ineffectual  temptation,  —  a  mere  wish 
or  desire. 

It  was  held,  by  all  the  judges,  that  the  soliciting  was  a  misdemeanor, 
though  the  indictment  contained  no  charge  that  the  servant  stole  the 
goods,  nor  that  any  other  act  was  done  except  the  soliciting. 

Separate  opinions  were  delivered  by  all  the  judges. 

Lord  Kenyon  said  the  solicitation  was  an  act,  and  it  would  be  a  slan- 
der upon  the  law  to  suppose  that  such  an  offence  was  not  indictable. 

Gross,  J.,  said  an  attempt  to  commit  a  misdemeanor  was,  in  itself, 
a  misdemeanor.    The  gist  of  the  offence  is  the  incitement. 

Lawrence,  J.,  said:  "All  offences  of  a  public  nature,  that  is,  all 
such  acts  or  attempts  as  tend  to  the  prejudice  of  the  community,  are 
indictable ; "  and  that  the  mere  soliciting  the  servant  to  steal  was  an 
attempt  or  endeavor  to  commit  a  crime. 

Le  Blanc,  J.,  said  that  the  inciting  of  another,  by  whatever  means 
it  is  attempted,  is  an  act  done  ;  and  if  the  act  is  done  with  a  criminal 
intent,  it  is  punishable  by  indictment. 

An  attempt  to  commit  an  offence  or  to  solicit  its  commission  is  at 
common  law  punishable  by  indictment.  1  Hawk.  P.  C.  55  ;  Whar.  Cr. 
Law,  78  and  872  ;   1  Russ.  on  Cr.  49. 

While  we  are  not  disposed  to  concur  with  Wharton,  to  the  full  extent, 
in  the  language  quoted,  that  every  act  which  might  be  supposed,  accord- 
ing to  the  stern  ethics  of  some  persons,  to  be  injurious  to  the  public 
morals,  to  be  a  misdemeanor,  yet  we  are  of  opinion  that  it  is  a  mis- 
demeanor to  propose  to  receive  a  bribe.  It  must  be  regarded  as  an 
inciting  to  offer  one,  and  a  solicitation  to  commit  an  offence.  This,  at 
common  law,  is  a  misdemeanor.     Inciting  another  to  the  commission 


SECT.  IV.]  COMMONWEALTH   V.    RANDOLPH.  127 

of  any  indictable  offence,  though  without  success,  is  a  misdemeanor. 
3  Chitty  Cr.  Law,  994  ;  1  Russ.  on  Cr.  49,  Cartwright's  case  ;  Russ. 
and  R.  C.  C.  107,  note  b ;  Rex  v.  Higgins,  2  East,  supra. 

As  we  have  seen,  the  mere  offer  to  bribe,  though  it  may  be  rejected, 
is  an  offence  ;  and  the  party  who  makes  the  offer  is  amenable  to  indict- 
ment and  punishment.  The  offer  amounts  to  no  more  than  a  proposal 
to  give  a  bribe  ;  it  is  but  a  solicitation  to  a  person  to  take  one.  The 
distinction  between  an  offer  to  bribe  and  a  proposal  to  receive  one,  is 
exceedingly  nice.  The  difference  is  wholly  ideal.  If  one  man  attempt 
to  bribe  an  officer,  and  influence  him,  to  his  own  degradation  and  to 
the  detriment  of  the  public,  and  fail  in  his  purpose,  is  he  more  guilty 
than  the  officer,  who  is  willing  to  make  sale  of  his  integrity,  debase 
himself,  and  who  solicits  to  be  purchased,  to  induce  a  discharge  of  his 
duties  ?  The  prejudicial  effects  upon  society  are,  at  least,  as  great  in 
the  one  case  as  in  the  other ;  the  tendency  to  corruption  is  as  potent ; 
and  when  the  officer  makes  the  proposal,  he  is  not  only  degraded,  but 
the  public  service  suffers  thereby. 

According  to  the  well-established  principles  of  the  common  law,  the 
proposal  to  receive  the  bribe  was  an  act  which  tended  to  the  preju- 
dice of  the  community,  greatly  outraged  public  decency,  was  in  the 
highest  degree  injurious  to  the  public  morals,  was  a  gross  breach  of 
official  duty,  and  must  therefore  be  regarded  as  a  misdemeanor,  for 
which  the  party  is  liable  to  indictment. 

It  is  an  offence  more  serious  and  corrupting  in  its  tendencies  than 
an  ineffectual  attempt  to  bribe.  In  the  one  case  the  officer  spurns  the 
temptation,  and  maintains  his  purity  and  integrity  ;  in  the  other,  he 
manifests  a  depravity  and  dishonesty  existing  in  himself,  which,  when 
developed  by  the  proposal  to  take  a  bribe,  if  done  with  a  corrupt  intent, 
should  be  punished  ;  and  it  would  be  a  slander  upon  the  law  to  suppose 
that  such  conduct  cannot  be  checked  by  appropriate  punishment. 

In  holding  that  the  act  charged  is  indictable,  we  are  not  drifting 
into  judicial  legislation,  but  are  merely  applying  old  and  well-settled 
principles  to  a  new  state  of  facts. 


COMMONWEALTH  v.  RANDOLPH. 
Supreme  Court  of  Pennsylvania.      1892. 

[Reported  146  Pennsylvania,  83.] 

Per  Curiam.  The  appellant  was  convicted  in  the  court  below  upon 
an  indictment  in  the  first  count  of  which  it  was  charged  that  she, 
"  Sarah  A.  McGint}-,  alias  Sarah  A.  Randolph,  .  .  .  unlawfully,  wick- 
edly, and  maliciously  did  solicit  and  invite  one  Samuel  Kissinger, 
then  and  there  being,  and  b}'  the  offer  and  promise  of  payment  to  said 
Samuel  Kissinger  of  a  large  sum  of  mone}',  to  wit,  one  thousand  dol- 
lars, which  to  him,  the  said  Samuel  Kissinger,  she,  the  said  Sarah  A. 
McGinty,  alias  Sarah  A.  Randolph,  then  and  there  did  propose,  offer. 


128  COMMONWEALTH   V.    KANDOLPH.  [CHAP.  IL 

promise,  and  agree  to  pay,  did  incite  and  encourage  hini,  tlie  said 
Samuel  Kissinger,  one  AVilliam  S.  Foltz,  a  citizen  of  said  county,  in 
the  peace  of  said  commonvvealtli,  feloniously  to  kill,  murder,  and  slay, 
contrary  to  the  form  of  the  act  of  general  assembly  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  commonwealth 
of  Pennsylvania."  Upon  the  trial  below  the  defendant  moved  to  quash 
the  indictment  upon  the  ground  that  "■  the  said  indictment  does  not 
charge  in  any  count  thereof  any  offence,  either  at  common  law  or  by 
statute.''  The  court  below  refused  to  quash  the  indictment ;  and  this 
ruling,  with  the  refusal  of  the  court  to  arrest  the  judgment,  is  assigned 
as  error. 

It  may  be  conceded  that  tliere  is  no  statute  which  meets  this  case, 
and,  if  the  crime  charged  is  not  an  offence  at  common  law,  the  judgment 
must  be  reversed.  What  is  a  common-law  offence?  We  endeavored 
to  answer  this  question  in  Com.  v.  McHale,  97  Pa.  397,  410,  in  which 
we  held  that  offences  against  the  purity  and  fairness  of  elections  were 
crimes  at  common  law,  and  indictable  as  such.  We  there  said  :  "  We 
are  of  opinion  that  all  such  crimes  as  especially  affect  public  society 
are  indictable  at  common  law.  The  test  is  not  whether  precedents  can 
be  found  in  the  books,  but  whether  they  injuriously  affect  the  public 
policy  and  economy."  Tested  by  this  rule,  we  have  no  doubt  that 
the  solicitation  to  commit  murder,  accompanied  by  the  offer  of  monej- 
for  that  purpose,  is  an  offence  at  common  law. 

It  may  be  conceded  that  the  mere  intent  to  commit  a  crime,  where 
such  intent  is  undisclosed,  and  nothing  done  in  pursuance  of  it,  is  not 
the  subject  of  an  indictment.  But  there  was  something  more  than  an 
undisclosed  intent  in  this  case.  There  was  the  direct  solicitation  to 
commit  a  murder,  and  an  offer  of  money  as  a  reward  for  its  commission. 
This  was  an  act  done,  —  a  step  in  the  direction  of  the  crime,  —  and 
had  the  act  been  perpetrated  the  defendant  would  have  been  liable  to 
punishment  as  an  accessory  to  the  murder.  It  needs  no  argument  to 
show  that  such  an  act  affects  the  public  policy  and  economy  in  a  serious 
manner. 

Authorities  in  this  State  are  very  meagre.  Smith  v.  Com.,  54  Pa. 
209,  decided  that  solicitation  to  commit  fornication  and  adultery  is  not 
indictable.  But  fornication  and  adultery  are  mere  misdemeanors  b}' 
our  law,  whereas  murder  is  a  capital  felony.  Stabler  v.  Com.,  95  Pa. 
318,  decided  that  the  mere  delivery  of  poison  to  a  person,  and  solicit- 
ing him  to  place  it  in  the  spring  of  a  certain  party,  is  not  ''  an  attempt 
to  administer  poison,"  within  the  meaning  of  the  eighty-second  section 
of  the  Act  of  March  31,  18G0,  P.  L.  403.  In  that  case,  however,  the 
sixth  count  of  the  indictment  charged  that  the  defendant  did  "falsely 
and  wickedly  solicit  and  invite  one  John  Neyer,  a  servant  of  the  said 
Richard  S.  Waring,  to  administer  a  certain  poison  and  noxious  and 
dangerous  substance,  commonly  called  Paris  green,  to  the  said  Richard 
F.  Waring,  and  divers  other  persons,  whose  names  are  to  the  said 
inquest  unknown,  of  the  family  of  the  said  Richard  F.  Waring,"  etc 


SECT.  IV.]  COMMONWEALTH   V.    RANDOLPH.  129 

The  defendant  was  convicted  upon  this  count,  and  while  the  judgment 
was  reversed  upon  the  first  count  cliarging  "  an  attempt  to  administer 
poison,"  we  sustained  the  conviction  upon  the  sixth  count ;  Mekcuk,  J., 
saying:  "The  conduct  of  tlie  plaiutilf  in  error,  as  testified  to  by  the 
witness,  undoubtedly  shows  an  offence  for  which  an  indictment  will  lie 
without  an\'  further  act  having  been  committed.  He  was  righth'  con- 
victed, therefore,  on  tlie  sixth  count." 

The  authorities  in  England  are  very  full  upon  this  point.  The  lead- 
ing case  is  Rex  v.  Iliggins,  2  East,  5.  It  is  very  similar  to  the  case 
at  bar,  and  it  was  squarely  held  that  solicitation  to  commit  a  felony  is 
a  misdemeanor  and  indictable  at  common  law.  In  that  case  it  was  said 
by  Lord  Kenyon,  C.  J. :  "  But  it  is  argued  that  a  mere  intent  to  com- 
mit evil  is  not  indictable  without  an  act  done  ;  but  is  there  not  an  act 
done,  where  it  is  chai-ged  that  the  defendant  solicited  another  to  commit 
a  felony  ?  The  solicitation  is  an  act,  and  the  answer  given  at  the  bar 
is  decisive  tliat  it  would  be  sufficient  to  constitute  an  overt  act  of  high 
treason."  We  are  not  unmindful  of  the  criticism  of  this  case  b}'  Chief 
Justice  AYooDWARD  in  Smith  v.  Com.,  siqyra,  but  we  do  not  think  it 
afl'ects  the  authority  of  that  case.  The  point  involved  in  Rex  v.  Ilig- 
gins was  not  before  the  court  in  Smith  v.  Com.,  and  could  not  have 
been  and  was  not  decided.  It  is  true,  this  is  made  a  statutory  ofl^ence 
by  St.  24  &  25  Vict. ;  but,  as  is  said  by  Mr.  Russell  in  his  work  on 
Crimes  (volume  1,  p  967),  in  commenting  on  this  act:  "As  all  the 
crimes  specified  in  this  clause  appear  to  be  misdemeanors  at  common 
law,  the  eflfect  of  this  clause  is  merely  to  alter  the  punishment  of  them." 
In  other  words,  that  statute  is  merelj'  declaratory  of  the  common  law. 

Our  best  text-books  sustain  the  doctrine  of  Rex  v.  Higgins.  "  If 
the  crime  solicited  to  be  committed  be  not  perpetrated,  then  the  adviser 
can  only  be  indicted  for  a  misdemeanor."  1  Chit.  Crim.  Law,  p. 
264.  See,  also,  1  Archb.  Crim.  Pr.  &  PI.  19,  and  1  Bish.  Crim.  Law, 
§  768,  where  the  learned  author  says:  "The  law  as  adjudged  holds, 
and  has  held  from  the  beginning  in  all  this  class  of  cases,  an  indict- 
ment sufficient  which  simply  charges  that  the  defendant,  at  the  time 
and  place  mentioned,  falsel}',  wickedl}',  and  unlawfully  did  solicit  and 
incite  a  person  named  to  commit  the  substantive  ofl!"ence,  without  any 
further  specification  of  overt  acts.  It  is  vain,  then,  to  say  that  mere 
solicitation,  the  mere  entire  thing  which  need  be  averred  against  a 
defendant  as  the  ground  for  his  conviction,  is  no  ofl"ence."  We  are  of 
opinion  the  appellant  was  properly  convicted,  and  the  judgment  is 
affirmed.^ 

1  See  State  v.  Avery,  7  Conn.  266  ;  Com.  v.  Flagg,  135  Mass.  545.  Cf.  Cox  P. 
People,  82  IlL  191;  Smith  v.  Com.,  54  Pa.  209.  —Ed. 


130  STATE   V.   HURLEY.  [CHAP.  II. 

STATE  V.   HURLEY. 
Supreme  Court  of  Vermont.     1906. 

[Reported  79  Vt.  000.] 

MuNSON,  J.  The  respondent  is  informed  against  for  attempting  to 
break  open  the  jail  in  which  he  was  confined  by  procuring  to  be  de- 
livered into  his  hands  12  steel  hack  saws,  with  an  intent  to  break  open 
the  jail  therewith.  The  state's  evidence  tended  to  show  that,  in  pursu- 
ance of  an  arrangement  between  the  respondent  and  one  Tracy,  a 
former  inmate,  Tracy  attempted  to  get  a  bundle  of  hack  saws  to  the 
respondent  by  throwing  it  to  him  as  he  sat  behind  the  bars  at  an  open 
window,  and  that  the  respondent  reached  through  the  bars  and  got  the 
bundle  into  his  hands,  but  was  ordered  at  that  moment  by  the  jailer  to 
drop  it,  and  did  so.  The  court  charged  in  substance  that  if  the  respon- 
dent arranged  for  procuring  the  saws  and  got  them  into  his  possession, 
with  an  intent  to  break  open  the  jail  for  the  purpose  of  escaping,  he 
was  guilty  of  the  offence  alleged.  The  respondent  demurred  to  the  in- 
formation, and  excepted  to  the  charge.  Bishop  defines  a  criminal  at- 
tempt to  be  "  an  intent  to  do  a  particular  criminal  thing,  with  an  act 
toward  it  falling  short  of  the  thing  intended."  2  Cr.  Law,  §  728. 
The  main  difficulty  in  applying  this  definition  lies  in  determining  the 
relation  which  the  act  done  must  sustain  to  the  completed  offence. 
That  relation  is  more  fully  indicated  in  the  following  definition  given 
by  Stephen  :  "  An  attempt  to  commit  a  crime  is  an  act  done  with  intent 
to  commit  that  crime,  and  forming  part  of  a  series  of  acts  which  would 
constitute  its  actual  commission  if  it  were  not  interrupted."  Dig.  Cr. 
Law,  33.  All  acts  done  in  preparation  are,  in  a  sense,  acts  done  toward 
the  accomplishment  of  the  thing  contemplated.  But  most  authorities 
certainly  hold,  and  many  of  them  state  specifically,  that  tlie  act  must 
be  something  more  than  mere  preparation.  Acts  of  preparation,  how- 
ever, may  have  such  proximity  to  the  place  where  the  intended  crime 
is  to  be  committed,  and  such  connection  with  a  purpose  of  present  ac- 
complishment, that  they  will  amount  to  an  attempt.  See  note  to  People 
V.  Moran  (N.  Y.)  20  Am.  St.  Rep.  741 ;  People  v.  Stiles,  75  Col.  570, 
17  Pac.  963  ;  People  v.  Lawton,  56  Barb.  (N.  Y.)  126. 

Various  rules  have  been  formulated  in  elucidating  this  subject. 
Some  acts  toward  the  commission  of  the  crime  are  too  remote  for  the 
law  to  notice.  The  act  need  not  be  the  one  next  preceding  that  needed 
to  complete  the  crime.  Preparations  made  at  a  distance  from  the 
place  where  the  offence  is  to  be  committed  are  ordinarily  too  remote  to 
satisfy  the  requirement.  1  Bish.  Cr.  Law,  §§  759,  762  (4)  763.  The 
preparation  must  be  such  as  would  be  likely  to  end,  if  not  extraneously 
interrupted,  in  the  consummation  of  the  crime  intended.  3  Am.  & 
Ency.  Law  (2d  ed.)  266,  note  7.  The  act  must  be  of  such  a  character 
.as  to  advance  the  conduct  of  the  actor  beyond  the  sphere  of  mere  intent. 


SECT.  IV.]  STATE    V.   HURLEY.  131 

It  must  reach  far  enough  towards  the  accomplishment  of  the  desired 
result  to  amount  to  the  commencement  of  the  consummation.  Hicks 
V.  Com.,  8G  Va.  223,  9  S.  E.  1024,  19  Am.  St.  Rep.  891.  But  after  all 
that  has  been  said,  the  application  is  difficult.  One  of  the  best  known 
cases  where  acts  of  preparation  were  held  insufficient  is  People  y- 
Murray,  14  Cal.  159,  which  was  an  indictment  for  an  attempt  to  con- 
tract an  incestuous  marriage.  There  the  defendant  had  eloped  with  his 
niece  with  the  avowed  purpose  of  marrj-ing  her,  and  had  taken  measures 
to  procure  the  attendance  of  a  magistrate  to  perform  the  ceremon3'. 
In  disposing  of  the  case,  Judge  Field  said:  "Between  preparations 
for  the  attempt  and  the  attempt  itself,  there  is  a  wide  difference.  The 
preparation  consists  in  devising  or  arranging  the  means  or  measures 
necessary  for  the  commission  of  the  offence;  the  attempt  is  the  direct 
movement  toward  the  commission  after  the  preparations  are  made." 
Mr.  Bishop  thinks  this  case  is  near  the  dividing  line,  and  doubts  if  it 
will  be  followed  by  all  courts.  1  Cr.  Law,  §  763  (3.)  Mr.  Wharton 
considers  the  holding  an  undue  extension  of  the  doctrine  that  prelimi- 
nary preparations  are  insufficient.  Cr.  Law,  181,  note.  But  the  case 
has  been  cited  with  approval  by  courts  of  high  standing.  The  exact 
inquir}'  presented  b}'  the  case  before  us  is  whether  the  procurement  of 
the  means  of  committing  the  offence  is  to  be  treated  as  a  preparation 
for  the  attempt,  or  as  the  attempt  itself.  In  considering  this  question,  it 
must  be  remembered  that  there  are  some  acts,  preparatory  in  their  cliar- 
acter,  which  the  law  treats  as  substantive  offences  ;  for  instance,  the 
procuring  of  tools  for  the  purpose  of  counterfeiting,  and  of  indecent 
prints  with  intent  to  publish  them.  Comments  upon  cases  of  this  char- 
acter may  lead  to  confusion  if  not  correctly  apprehended.  "Wharton, 
Cr.  Law,  §  180,  and  note  1. 

The  case  of  Griffin  v.  The  State,  26  Ga.  493,  cited  by  the  respon- 
dent, cannot  be  accepted  as  an  authority  in  his  favor.  There  the  de- 
fendant was  charged  with  attempting  to  break  into  a  storehouse  with 
intent  to  steal,  by  procuring  an  impression  of  the  key  to  the  lock  and 
preparing  from  this  impression  a  false  key  to  fit  the  lock.  The  section 
of  the  Penal  Code  upon  which  the  indictment  was  based  provides  for 
the  indictment  of  any  one  who  "  shall  attempt  to  commit  an  offence 
prohibited  by  law,  and  in  such  an  attempt  shall  do  any  act  toward  the 
commission  of  such  offence."  The  court  considered  that  the  General 
Assembl}^  used  the  word  "attempt"  as  synonymous  with  "intend," 
and  that  the  object  of  the  enactment  was  to  punish  "  intents,"  if  dem- 
onstrated by  an  act.  The  court  cited  Rex  v.  Sutton,  2  Str.  1074,  as  a 
strong  authority  in  support  of  the  indictment.  There  the  prisoner  was 
convicted  for  having  in  his  possession  iron  stamps,  with  intent  to  im- 
press the  sceptre  on  sixpences.  This  was  not  an  indictment  for  any 
attempt,  but  for  the  offence  of  possessing  tools  for  counterfeiting  with 
intent  to  use  them.  The  Georgia  court,  by  its  construction  of  the 
statute,  relieved  itself  from  the  distinction  between  "  attempts  "  and 
crimes  of  procuring  or  possessing  with  unlawful  intent. 


132  STATS  V.   HUELEY.  [CHAP.  II. 

The  act  in  question  here  is  the  procuring  b}-  a  prisoner  of  tools 
adapted  to  jail  breaking.  That  act  stands  entirely  unconnected  with 
any  further  act  looking  to  their  use.  It  is  true  that  the  respondent 
procured  them  with  the  design  of  breaking  jail.  But  he  had  not  put 
that  design  into  execution,  and  might  never  have  done  so.  He  had 
procured  the  means  of  making  the  attempt,  but  the  attempt  itself  was 
still  in  abeyance.  Its  inauguration  depended  upon  the  choice  of  an 
occasion  and  a  further  resolve.  That  stage  was  never  reached,  and  the 
procuring  of  the  tools  remained  an  isolated  act.  To  constitute  an 
attempt,  a  preparatory  act  of  this  nature  must  be  connected  with  the 
accomplishment  of  the  intended  crime  by  something  more  than  a 
general  design. 

Exceptions  sustained,  judgment  and  verdict  set  aside,  demurrer  sus- 
tained, information  held  insufficient  and  quashed,  and  respondent 
discharged. 


SECT,  v.]  DOBBS'S  CASE.  133 


SECTION  V. 
A  Specific  Intent  as  Part  of  an  Offence, 

1  Hale  P.  C.  569.  [Arson]  must  be  a  wilful  and  malicious  burning, 
otherwise  it  is  not  felony,  but  onl}'  a  trespass  ;  and  therefore  if  A. 
shoot  unlawfulh-  in  a  hand-gun,  suppose  it  to  be  at  the  cattle  or  poul- 
try of  B.  and  the  fire  thereof  sets  another's  house  on  fire,  this  is  not 
felony,  for  though  the  act  he  was  doing  were  unlawful,  yet  he  had  no 
intention  to  burn  the  house  thereby,  against  the  opinion  of  Datt.  Cap. 
105  p.  270. 

But  if  A.  have  a  malicious  intent  to  burn  the  house  of  B.,  and  in 
setting  fire  to  it  burns  the  house  of  B.  and  C.  or  the  house  of  B. 
escapes  by  some  accident,  and  the  fire  takes  in  the  house  of  C.  and 
burneth  it,  though  A.  did  not  intend  to  burn  the  house  of  C,  yet  in 
law  it  shall  be  said  the  malicious  and  wilful  burning  of  the  house  of 
C.  and  he  may  be  indicted  for  the  malicious  and  wilful  burning  of  the 
house  of  C.     Co.  P.  C.  p.  67. 


DOBBS'S   CASE. 
Buckingham  Assizes.     1770. 

[Reported  2  East,  P.  C.  513.] 

Joseph  Dobbs  was  indicted  for  burglary  in  breaking  and  entering 
the  stable  of  James  Bayley,  part  of  his  dwelling-house,  in  the  night, 
with  a  felonious  intent  to  kill  and  destroy  a  gelding  of  one  A.  B.,  there 
being.  It  appeared  that  the  gelding  was  to  have  run  for  forty  guineas, 
and  "that  the  prisoner  cut  the  sinews  of  his  fore-leg  to  prevent  his  run- 
ning, in  consequence  of  which  he  died. 

Parker,  C.  B.,  ordered  him  to  be  acquitted  ;  for  his  intention  was 
not  to  commit  the  felony,  by  killing  and  destroying  the  horse,  but  a 
trespass  only  to  prevent  his  running  ;  and  therefore  no  burglary. 

But  the  prisoner  was  again  indicted  for  killing  the  horse,  and 
c&pitally  convicted. 


134  REX   V.    KELLY.  [CHAP.  li. 


REX   V.  BOYCE. 
Crown  Case  Reserved.     1824. 

[Reported  1  Mood;/,  29.] 

The  prisoner  was  tried  before  Thomas  Denman,  Esq.,  Common 
Serjeant  at  the  Old  Bailey  Sessions,  June,  1824,  upon  an  indictment  for 
feloniously  cutting  and  maiming  John  Fishburn,  with  intent  to  murder, 
maim,  and  disable.^  There  was  no  count  which  charged  an  intent  to 
prevent  his  lawful  apprehension. 

The  facts  were  these  : 

The  prisoner  had,  in  the  night  time,  broken  into  a  shop  in  Fleet 
Market,  and  was  there  discovered  by  the  prosecutor,  who  was  a  watch- 
man, at  a  quarter  before  five  in  the  morning  of  tlie  11th  of  April,  1820. 
On  the  prosecutor  entering  the  shop  for  the  purpose  of  apprehending 
him,  the  prisoner  struck  him  with  his  fist,  which  blow  the  prosecutor 
returned.  The  prisoner  then  said,  "I  will  serve  you  out  —  I  will  do 
for  you  ;  "  and,  taking  up  a  crow-bar,  struck  the  prosecutor  with  it 
two  severe  blows,  one  on  the  head,  the  other  on  the  arm  ;  he  then 
ran  away,  ordering  the  prosecutor  to  sit  on  a  block  in  the  shop,  and 
threatening  that  it  would  be  worse  for  him  if  he  moved. 

The  crow-bar  was  a  sharp  instrument,  and  the  prosecutor  was  cut 
and  maimed  by  the  blows  so  given  with  it  by  the  prisoner. 

The  prisoner  was  found  guilty ;  and,  on  an  answer  to  a  question  from 
the  Common  Serjeant,  the  jury  said,  "We  find  that  he  was  there  with 
intent  to  commit  a  robbery,  and  that  he  cut  and  maimed  the  watchman 
with  intent  to  disable  him  till  he  could  effect  his  own  escape." 

The  Common  Serjeant  reserved  the  above  case  for  the  consideration 
of  the  judges. 

•  In  Trinity  Term,  1824,  all  the  judges  (except  Graham,  B.  and 
Garrow,  B.)  met,  and  considered  this  case,  and  held  the  conviction 
wrong,  for,  by  the  finding  of  the  jury,  the  prisoner  intended  only  to 
produce  a  temporary  disability  till  he  could  escape,  not  a  permanent 
one.^ 


REX   V.    KELLY. 
MoNAGHAN  Assizes,  Ireland.     1832. 

[Reported  1  Crawford  <^  Dix,  186.] 

Indictment  for  maliciously  killing  a  horse.     The  evidence  was  that 
the  prisoner  had  fired  at  the  prosecutor,  and  killed  his  horse. 

1  See  4.3  Geo.  III.  c.  58,  §  1. 

2  Jcc.  Rex  V.  Duffin,  Russ.  &  Ry.  365.  —  Ed. 


SECT,  v.]  REGINA    V.    SMITH.  135 

BusHE,  C.  J.  Under  this  Act^  the  offence  must  be  proved  to  have 
been  done  maliciously,  and  malice  implies  intention.  Here  the  proof 
negatives  the  intention  of  killing  the  horse.  The  prisoner  must  there- 
fore be  acquitted.^ 


REGINA  V.  SMITH. 

Crown  Case  Reserved.     1856. 
[Reported  Dears.  C.  C.  559.] 

The  following  case  was  stated  for  the  opinion  of  the  Court  of  Crim- 
inal Appeal  b}-  Mr.  Justice  Crompton. 

Tlie  prisoner  was  convicted  before  me  at  the  Winchester  Summer 
Assizes,  1855,  on  an  indictment  charging  him  with  wounding  William 
Taylor  with  intent  to  murder  him. 

On  the  night  in  question  the  prisoner  was  posted  as  a  sentry  at  Park- 
hurst,  and  the  prosecutor,  Taylor,  was  posted  as  a  sentry  at  a  neigh- 
bouring post. 

The  prisoner  intended  to  murder  one  Malone}*,  and  supposing  Taylor 
to  be  Maloney,  shot  at  and  wounded  Taylor. 

The  jury  found  that  the  prisoner  intended  to  murder  Malone}',  not 
knowing  that  the  party  he  shot  at  was  Taylor,  but  supposing  him  to  be 
Maloney,  and  the  jury  found  that  he  intended  to  murder  the  individual 
he  shot  at  supposing  him  to  be  Maloney. 

I  directed  sentence  of  death  to  be  recorded,  reserving  the  question, 
whether  tlie  prisoner  could  be  properly  convicted  on  this  state  of  facts 
of  wounding  Taylor  with  intent  to  murder  him?  See  Rex  v.  Holt,  7 
Car.  &  P.  518.     See  alro  Rex  v.  Ryan,  2  Moo.  &  Rob.  213. 

Charles  Crompton. 

This  case  was  considered  on  24th  of  November,  1855,  by  Jervis, 
C.  J.,  Parke,  B.,  Wightman,  J.,  Crompton,  J,,  and  Willes,  J. 
No  counsel  appeared  either  for  the  Crown  or  for  the  prisoner. 
Jervis,  C.  J.     There  is  nothing  in  the  objection.     The  conviction  is 
good. 

Parke,  B.     The  prisoner  did  not  intend  to  kill  the  particular  person, 
but  he  meant  to  murder  the  man  at  whom  he  shot. 
The  other  learned  Judges  concurred. 

Conviction  affirmed. 
1  9  Geo.  IV.  c.  56,  §17. 
*  Ace.  Com.  V.  Walden,  3  Cush.  558.  —  Ed. 


136  REX    V.  WILLIAMS.  [chap.   II. 

REX   V.   WILLIAMS. 
Crown  Case  Reversed.     1790. 
[Reported  1  Leach  C.  C.  (4th  Ed.)  529.] 

AsHHURST,  J.^  Ehenwick  Williams,  the  prisoner  at  the  bar,  was  tried 
m  last  July  Session  on  the  statute  of  6  Geo.  I,  e.  23,  and  the  indict- 
ment charged,  that  he,  on  the  18th  January  1790,  at  the  parish  of  St. 
James,  in  a  certain  public  street  called  St.  James's-street,  wilfully, 
maliciously,  and  feloniously  did  make  an  assault  on  Anne  Porter, 
spinster,  with  intent  wilfull}'  and  maliciously'  to  tear,  spoil,  cut,  and 
deface  her  garments  ;  and  that  he,  on  that  said  18th  of  January  1790, 
in  the  parish  aforesaid,  &c.  did  wilfully,  maliciously,  and  feloniously 
tear,  spoil,  cut,  and  deface  her  silk  gown,  petticoat,  and  shift,  being 
part  of  the  wearing  apparel  which  she  then  had  and  wore  on  her 
person.  The  Jury  found  the  prisoner  guilty ;  but  the  judgment  was 
respited,  and  the  case  submitted  to  the  consideration  of  the  Judges 
upon  three  questions.  A  majorit}'  of  the  Judges  are  of  opinion,  upon 
all  the  questions,  that  this  indictment  is  not  well  founded.  .  .  .  The 
Judges  are  of  opinion,  that  the  case,  as  proved,  is  not  substantially 
within  the  meaning  of  the  Act  of  Parliament.  This  statute  was  passed 
upon  a  particular  and  extraordinary'  occasion.  Upon  the  introduc- 
tion of  Indian  fashions  into  this  country,  the  silk  weavers,  conceiving 
that  it  would  be  detrimental  to  their  manufacture,  made  it  a  practice  to 
tear  and  destroy  the  clothes  and  garments  which  were  of  a  different 
commodity  from  that  which  the}'  wove,  and  to  prevent  this  practice 
the  statute  of  6  Geo.  I,  c.  23,  was  made.  To  bring  a  case  therefore 
within  this  statute,  the  primary  intention  must  be  the  tearing,  spoiling, 
cutting,  or  defacing  of  the  clothes  ;  whereas,  in  the  present  case,  the 
primar}'  intention  of  the  prisoner  appears  to  have  been  the  wounding 
of  the  person  of  the  prosecutrix.  The  Legislature,  at  the  time  the}' 
passed  this  Act,  did  not  look  forward  to  the  possibilit}'  of  a  crime 
of  so  diabolical  a  nature  as  that  of  wounding  an  unoffending  person 
merel}'  for  the  sake  of  wounding  the  person,  without  having  received 
any  provocation  whatever  from  the  party  wounded.  But  even  upon  the 
supposition  that  it  was  possible  for  the  Legislature  to  entertain  an  idea 
of  such  an  offence,  it  is  clear  they  did  not  intend  to  include  it  within 
the  penalties  of  this  statute,  because,  if  they  had  entertained  such  an 
idea,  it  is  probable  they  would  have  annexed  to  it  a  higher  punishment 
than  this  statute  inflicts.  As  the  Legislature  therefore  could  not  have 
framed  this  statute  to  meet  this  offence,  it  does  not  fall  within  the 
province  of  those  who  are  to  expound  the  laws  to  usurp  the  oflSce  of  the 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT,  v.]  STATE    V.    TAYLOK.  137 

Legislature,  and  to  bring  an  offence  within  the  meaning  of  an  Act, 
merel}'  because  it  is  enormous,  and  deserving  of  the  highest  punish- 
ment. But  although  the  lash  of  the  Legislature  does  not  reach  this 
offence  so  as  to  inflict  the  consequences  of  felony  on  the  offender,  yet 
the  wisdom  of  the  Common  Law  opens  a  means  of  prosecution  by 
indictment  for  the  misdemeanor,  and,  on  conviction  of  the  offender, 
arms  the  Court  with  a  power  to  punish  the  offence  in  a  way  that  may 
force  him  to  repent  the  temerity  of  so  flagrant  a  violation  of  the  rules 
of  law,  the  precepts  of  social  duty,  and  the  feelings  of  humanity.^ 


STATE  V.  TAYLOR. 

Supreme  Court  of  Vermont.     1896. 
[Reported  70  Vt.  1.] 

Indictment  for  an  assault  with  intent  to  kill  and  murder.  Trial  by 
jury  at  the  May  Term,  1895,  Windsor  County,  Taft,  J.,  presiding. 
Verdict  and  judgment  of  guilty,  and  sentence  imposed  at  the  respond- 
ent's request.     The  respondents  excepted. 

MuNSON,  J.^  The  alleged  assault  was  committed  upon  Paul  Tink- 
ham,  constable  of  Rochester,  and  three  persons  acting  under  him,  while 
they  were  effecting  an  arrest  of  the  respondents  and  two  others,  with- 
out a  warrant  on  suspicion  of  felon}^  .  .  . 

It  is  also  objected  that  the  respondents  could  not  be  convicted  of 
more  than  a  common  assault  without  the  finding  of  an  actual  intent  to 
take  life,  and  that  the  charge  permitted  the  jury  to  return  their  verdict 
without  finding  this.  It  has  been  repeatedly  held  in  cases  not  involving 
the  matter  of  arrest  that  proof  of  a  specific  intent  to  kill  is  requisite. 
The  intent  is  the  body  of  the  aggravated  offence.  If  death  results  from 
an  unlawful^  act,  the  offender  may  be  guilty  of  murder,  even  though  he 

1  It  seems  that  Buller,  J.,  retained  the  opinion  he  had  given  the  Jury,  viz.  that 
the  case  came  within  the  statute,  because  the  Jury,  whose  sole  province  it  was  to  find 
the  intent,  had  expressly  found  that  the  intent  of  the  prisoner  was  to  wound  the 
party  by  cutting  through  her  clothes,  and  therefore  that  he  must  have  intended  to  cut 
her  clothes  ;  and  for  this  opinion  he  relied  upon  the  case  of  Cook  and  Woodburn,  upon 
the  statute  22  and  23  Car.  II,  c.  1,  commonly  called  the  Coventry  Act,  charging  them 
in  the  words  of  the  Act  with  an  intention  to  maim  a  Mr.  Crisp.  The  fact  of  maiming 
was  clearly  proved,  but  the  defendants  insisted  that  their  intention  was  to  murder 
him,  and  not  to  maim  him,  and  therefore  that  they  were  not  within  the  statute.  But 
Lord  King  said  that  the  intention  was  a  matter  of  fact  to  be  collected  from  the  cir- 
cumstances of  the  case,  and  as  such  was  proper  to  be  left  to  the  Jury  ;  and  that  if  it 
was  the  intent  of  the  prisoners  to  murder,  it  was  to  be  considered  whether  the  means 
made  use  of  to  accomplish  that  end  and  the  consequences  of  those  means  were  not 
likewise  in  their  intention  and  design  ;  and  the  Jury  found  them  guilty  and  they  were 
executed. —  But  it  seems  that  upon  a  subsequent  occasion  Willes,  J.,  and  Eyre,  B., 
expressed  some  dissatisfaction  with  this  determination,  and  thought,  at  least,  that  the 
construction  ought  not  to  be  carried  further.     1  East,  400  and  424. 

*  Only  so  mach  of  the  case  as  discusses  the  question  of  intent  to  kill  is  given.  -^ 
Ed. 


5^38  STATE   V.    TAYLOR.  [CHAP.  II. 

did  not  intend  to  take  life  ;  but  if  the  assault,  however  dangerous,  is 
not  fatal,  the  offender  cannot  be  convicted  of  an  assault  with  intent  to 
kill  unless  the  intent  existed.  An  intent  to  take  Ufe  may  sometimes  be 
presumed  from  the  fact  of  killing,  but  when  that  fact  does  not  exist  the 
intent  must  be  otherwise  established.  Any  inference  that  may  be  drawn 
from  the  nature  of  the  weapon  and  the  manner  of  its  use  is  an  inference 
of  fact  to  be  drawn  by  the  jury  upon  a  consideration  of  these  with  the 
other  circumstances  of  the  case.  2  Bish.  Crira.  Law,  §  741  ;  Roberts 
V.  People,  19  Mich.  401 ;  Patterson  v.  State,  85  Ga.  131 ;  21  Am.  St. 
152. 

Nor  do  we  find  any  ground  for  holding  otherwise  when  the  assault 
is  made  in  resisting  arrest.  Under  an  indictment  framed  like  this,  a 
respondent  may  be  convicted  of  an  assault  with  intent  to  kill,  or  an 
assault  with  intent  to  murder.  State  v.  Reed,  40  Vt.  603.  The  grade 
of  the  assault  will  depend  upon  whether  the  crime  would  have  been 
manslaughter  or  murder  if  death  had  ensued.  But  if  the  death  had 
resulted  from  resisting  an  authorized  arrest  properly  made,  the  crime 
would  have  been  murder,  regardless  of  the  question  of  malice.  So  if 
the  assault  charged  was  committed  in  resisting  such  an  arrest,  and  was 
found  to  have  been  made  with  intent  to  kill,  it  would  have  been  an 
assault  with  intent  to  murder.  But  in  the  case  of  either  assault  there 
must  have  been  the  intent  to  take  life.  The  elimination  from  the  in- 
quiry of  malice  as  the  distinguishing  test  between  murder  and  man- 
slaughter, and  so  between  the  two  grades  of  assaults,  does  not  eliminate 
the  question  of  specific  intent,  which  is  an  essential  element  even  of  the 
lower  offence-  The  malice  which  the  law  infers  from  resistance  to  law- 
ful arrest  does  not  cover  the  intent  to  do  a  particular  injury,  and  the 
question  of  intent  must  stand  the  same  as  in  other  cases. 

So  it  becomes  necessary  to  consider  whether  the  matter  of  intent  was 
properly  submitted  to  the  jury.  The  question  was  not  entirely  ignored 
by  the  court,  but  it  was  omitted  from  the  general  propositions  sub- 
mitted, and  we  think  the  charge  as  a  whole  could  not  fail  to  leave  upon 
the  minds  of  the  jury  an  impression  that  if  the  circumstances  of  the 
arrest  were  such  that  the  killing  of  the  officer  would  have  been  murder, 
the  assault  was  an  assault  with  intent  to  murder.  The  attention  of  the 
jury  was  directed  almost  exclusively  to  the  question  of  guilt  as  depend- 
ing upon  the  legality  of  the  arrest.  They  were  nowhere  distinctly  told 
that  unless  the  respondents  were  found  to  have  made  the  assault  with 
an  intent  to  take  life,  they  could  be  convicted  of  nothing  but  a  common 
assault. 


SECT,  v.]  REX   V.    SHEPPARD.  139 

REX   V.    SHEPPARD. 
Crown  Case  Reserved.     1810. 

[Reported  Russell  c^  Ryan,  169.] 

The  prisoner  was  tried  before  Mr.  Justice  Heath,  at  the  Old  Bailey 
September  sessions,  in  tlie  year  1809,  on  an  indictment  consisting  of 
four  counts. 

The  first  count  charged  the  prisoner  with  forging  a  receipt  for 
£19  16s.  6(1,  purposing  to  be  signed  by  W.  S.  West,  for  certain  stock 
therein  mentioned,  with  intent  to  defraud  the  governors  and  company 
of  the  Bank  of  England.  The  second  count  was  for  uttering  the  same 
knowing  it  to  be  forged,  with  the  like  intent.  The  third  and  fourth 
counts  varied  from  the  first  and  second  in  charging  the  intent  to  have 
been  to  defraud  Richard  Mordey. 

It  appeared  in  evidence  at  the  trial  that  Richard  Mordey  gave  £20 
to  his  brother,  Thomas  Mordey,  in  the  month  of  January,  1809,  to 
buy  stock  in  the  five  per  cent  Navy. 

In  February  following  Thomas  Mordey  gave  the  £20  to  the  prisoner 
for  the  purchase  of  the  said  stock,  on  the  prisoner's  delivering  to  him 
the  receipt  stated  in  the  indictment. 

The  prisoner  being  examined  at  the  bank,  confessed  that  the  receipt 
was  a  forgery,  that  there  was  no  such  person  as  W.  S.  West,  whose 
signature  appeared  subscribed  to  the  receipt,  and  that  he,  being 
pressed  for  money,  forged  that  name,  but  had  no  intention  of  defraud- 
ing Richard  Mordey. 

Richard  Mordey  and  Thomas  INIordey  swore  they  believed  that  the 
prisoner  had  no  such  intent. 

On  examining  the  bank  books,  no  transaction  corresponding  with 
this  could  be  found. 

The  learned  judge  told  the  jury  that  the  prisoner  was  entitled  to  an 
acquittal  on  the  first  and  second  counts,  because  the  receipt  in  ques- 
tion could  not  operate  in  fraud  of  the  governor  and  company  of  the 
bank. 

That  as  to  the  third  and  fourth  counts,  although  the  Mordeys 
swore  that  they  did  not  believe  the  forgery  to  have  been  committed 
with  an  intent  to  defraud  Richard  Mordey  ;  yet,  as  it  was  the  neces- 
sary effect  and  consequence  of  the  forgery,  if  the  prisoner  could  not 
repay  the  money,  it  was  sufficient  evidence  of  the  intent  for  them  to 
convict  the  prisoner. 

The  jury  acquitted  the  prisoner  on  the  first  and  second  counts,  and 
found  him  guilty  on  the  third  and  fourth  counts  ;  and  the  learned 
judge  reserved  this  case  for  the  opinion  of  the  judges,  to  determine 
whether  this  direction  to  the  jury  was  right  and  proper. 

In  Easter  term,  31st  of  May,  1810,  all  the  judges  were  present,  and 
they  were  all  of  opinion  that  the  conviction  was  right,  that  the  imme- 
diate effect  of  the  act  was  the  defrauding  of  Richard  Mordey  of  his 
money. 


140  gore's  case.  [chap.  ii. 


GORE'S   CASE. 
Crown  Case  Reserved.     1611. 

[Reported  9  Coke,  81  a. J 

Before  Fleming,  Chief  Justice,  and  Tanfield,  Chief  Baron,  Justices 
of  Assize,  this  case  happened  in  their  western  circuit.  Agnes,  the 
daughter  of  Roper,  married  one  Gore  ;  Gore  fell  sick ;  Roper,  the 
father,  in  good-will  to  the  said  Gore  his  son-in-law  went  to  one  Dr. 
Gray,  a  physician,  for  his  advice,  who  made  a  receipt  directed  to  one 
Martin,  his  apothecary',  for  an  electuar}'  to  be  made,  which  the  said 
Martin  did  and  sent  it  to  the  said  Gore  ;  Agnes,  the  wife  of  Gore, 
secretly  mixed  ratsbane  with  the  electuary,  to  the  intent  therewith  to 
poison  her  husband,  and  afterward,  18  Mail,  she  gave  part  of  it  to  her 
husband,  who  eat  thereof  and  immediately  became  grievously  sick  ; 
the  same  day  Roper  the  father  eat  of  it,  and  immediatel}^  also  became 
sick  ;  19  Maii  C.  eat  part  of  it,  and  he  likewise  fell  sick  ;  but  the}-  all 
recovered,  and  yet  are  alive.  The  said  Roper,  observing  the  operation 
of  the  said  electuary,  carried  the  said  box  with  the  said  electuar}-  21 
Mail  to  the  said  Gray  the  physician  and  informed  him  of  the  said 
accidents,  who  sent  for  the  said  Martin  the  apothecary  and  asked  him 
if  he  had  made  the  said  electuary'  according  to  his  direction,  who 
answered  that  he  had  in  all  things  but  in  one,  which  he  had  not  in  his 
shop,  but  put  in  another  thing  of  the  same  operation,  which  the  said 
Dr.  Gray  well  approved  of;  whereupon  Martin  the  apothecary  said,  "  To 
the  end  you  may  know  that  I  have  not  put  anything  in  it  which  I 
myself  will  not  eat,  I  will  here  before  you  eat  part  of  it,"  and  there- 
upon Martin  took  the  box,  and  with  his  knife  mingled  and  stirred  to- 
gether the  said  electuary,  and  took  and  eat  part  of  it,  of  which  he 
died  the  22d  day  of  May  following.  The  question  was,  if  upon  all 
this  matter  Agnes  had  committed  murder.  And  this  case  was  deliv'- 
ered  in  writing  to  all  the  judges  of  England  to  have  their  opinions  in 
the  case  ;  and  the  doubt  was,  because  Martin  himself  of  his  own  head, 
without  incitation  or  procurement  of  any,  not  onl}'  eat  of  the  said 
electuary,  but  he  himself  mingled  and  stirred  it  together,  which  mix- 
ing and  stirring  had  so  incorporated  the  poison  with  the  electuary, 
that  it  made  the  operation  more  forcible  than  the  mixture  which  the 
said  Agnes  had  made ;  for  notwithstanding  the  mixture  which 
Agnes  had  made,  those  who  eat  of  it  were  sick,  but  3'et  alive,  but  the 
mixture  which  Martin  has  made  by  mingling  and  stirring  of  it  with 
his  knife,  made  the  operation  of  the  poison  more  forcible  and  was  the 
occasion  of  his  death.  And  if  this  circumstance  would  make  a  differ- 
ence between  this  case  and  Saunders's  case  in  Plow.  Com.  474  was 
the  question. 

And  it  was  resolved  b\^  all  the  judges  that  the  said  Agnes  was 
guilt}'  of  the  murder  of  the  said  Martin,  for  the  law  conjoins  the  mur- 


SECT,  v.]  REGINA   V.   PEMBLITON.  141 

derous  intention  of  Agnes  in  putting  the  poison  into  the  electuary  to 
kill  her  husband  with  the  event  which  thence  ensued,  — sc.  the 
death  of  the  said  Martin  ;  for  the  putting  of  the  poison  into  the  elec- 
tuary is  the  occasion  and  cause,  and  the  poisoning  and  death  of  the 
said"^  Martin  is  the  event,  qtda  euentus  est  qui  ex  causa  sequitur,  et 
dicioititr  eventus  quia  ex  causis  evenhmt,  and  the  stirring  of  the 
electuary  by  Martin  with  his  knife  without  the  putting  in  of  the  poison 
by  Agnes  could  not  have  been  the  cause  of  his  death. 

~  And  it  was  also  resolved  that  if  A.  puts  poison  into  a  pot  of  wine, 
&c.,  to  the  intent  to  poison  B.,  and  sets  it  in  a  place  where  he  sup- 
poses B.  will  come  and  drink  of  it,  and  by  accident  C.  (to  whom  A. 
has  no  malice)  comes  and  of  his  own  head  takes  the  pot  and  drinks  of 
it,  of  which  poison  he  dies,  it  is  murder  in  A.,  for  the  law  couples  the 
event  with  the  intention,  and  the  end  with  the  cause  ;  and  in  the  same 
case  if  C.  thinking  that  sugar  is  in  the  wine,  stirs  it  with  a  knife  and 
drinks  of  it,  it  will  not  alter  the  case  ;  for  the  King  by  reason  of  the 
putting  in  of  the  poison  with  a  murderous  intent  has  lost  a  suliject ; 
and  therefore  in  law  he  who  so  put  in  the  poison  with  an  ill  and  felo- 
nious intent  shall  answer  for  it.  But  if  one  prepares  ratsbane  to  kill 
rats  and  mice,  or  other  vermin,  and  leaves  it  in  certain  places  to  that 
purpose,  and  with  no  ill  intent,  and  one  finding  it  eats  of  it,  it  is  not 
felony,  because  he  who  prepares  the  poison  has  no  ill  or  felonious  in- 
tent :  but  when  one  prepares  poison  with  a  felonious  intent  to  kill  any 
reasonable  creature,  whatsoever  reasonable  creature  is  thereby  killed, 
he  who  has  the  ill  and  felonious  intent  shall  be  punished  for  it,  for 
he  is  as  great  an  offender  as  if  his  intent  against  the  other  person 
had  taken  effect.  And  if  the  law  should  not  be  such,  this  horrible 
and  heinous  offence  would  be  unpunished ;  which  would  be  mischievous 
and  a  great  defect  in  the  law. 


REGINA   V.    PEMBLITON. 
Crovtn  Case  Reserved.     1874. 

[Reported  12  Cox  C.  C.  607.] 

Case  stated  for  the  opinion  of  this  court  by  the  Recorder  of 
Wolverhampton. 

At  the  Quarter  Sessions  of  the  Peace  held  at  Wolverhampton  on  the 
8th  day  of  .January  instant  Henry  Pembliton  was  Indicted  for  that  he 
"unlawfully  and  maliciously  did  commit  damage.  Injury,  and  spoil  upon 
a  window  in  the  house  of  Henry  Kirkham  "  contrary  to  the  provision 
of  the  Stat.  24  &  25  Vict.  c.  97,  s.  51.  This  section  of  the  statute 
enacts  :  — 

"  Wliosoever  shall  unlawfully  and  maliciously  commit  any  damage, 
injury,  or  spoil  to  or  upon  any  real  or  personal  property  whatsoever, 


142  REGINA   V.    PEMBLITON.  [CHAP.  II. 

either  of  a  public  or  a  private  nature,  for  which  no  punishment  is 
hereinbefore  provided,  the  damage,  injury,  or  spoil  being  to  an  amount 
exceeding  £5,  shall  be  guilt}'  of  a  misdemeanor,  and  being  convicted 
thereof  shall  be  liable,  at  the  discretion  of  the  court,  to  be  imprisoned 
for  any  term  not  exceeding  two  years,  with  or  without  hard  labor  ;  and 
in  case  any  such  offence  shall  be  committed  between  the  hours  of  nine 
of  the  clock  in  the  evening  and  six  of  the  clocli  in  the  next  morning,  he 
shall  be  liable  at  the  discretion  of  the  court  to  be  kept  in  penal  servi- 
tude for  any  term  not  exceeding  five  years,  and  not  less  than  three,  or 
to  be  imprisoned  for  any  term  not  exceeding  two  years,  with  or  without 
hard  labor." 

On  the  night  of  the  6th  day  of  December,  1873,  the  prisoner  was 
drinking  with  others  at  a  public-house  called  •'  The  CJrand  Turk  "  kept 
by  tlie  prosecutor.  About  eleven  o'clock  p.  ii.  the  whole  party  were 
turned  out  of  the  house  for  being  disorderly,  and  they  then  began  to 
fight  in  the  street  and  near  the  prosecutor's  window,  where  a  crowd 
of  from  forty  to  fifty  persons  collected.  The  prisoner,  after  fighting 
some  time  with  persons  in  the  crowd,  separated  himself  from  them,  and 
removed  to  the  other  side  of  the  street,  where  he  picked  up  a  large 
stone  and  threw  it  at  the  persons  he  had  been  fighting  with.  The  stone 
passed  over  the  iieads  of  those  persons,  and  struck  a  large  plate-glass 
window  in  the  prosecutor's  house,  and  broke  it,  thereby  doing  damage 
to  the  extent  of  £7  12s.  9d. 

The  jury,  after  hearing  evidence  on  both  sides,  found  that  the  pris- 
oner threw  the  stone  which  broke  the  window,  but  that  he  threw  it  at 
the  people  he  had  been  fighting  with,  intending  to  strike  one  or  more  of 
them  with  it,  but  not  intending  to  break  the  window  ;  and  they  returned 
a  verdict  of  "guilt}',"  whereupon  I  respited  the  sentence,  and  admitted 
the  prisoner  to  bail,  and  pray  the  judgment  of  the  Court  for  Crown 
Cases  Reserved,  whether  upon  the  facts  stated  and  the  finding  of  the 
jury,  the  prisoner  was  rightly  convicted  or  not. 

(Signed)  John  J.  Powell, 

Recorder  of  Wolverhampton. 

No  counsel  appeared  to  argue  for  the  prisoner. 

«/".  U'lderhill,  for  the  prosecution.'^ 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  quashed.  The  facts  of  the  case  are  these.  The  prisoner  and  some 
other  persons  who  had  been  drinking  in  a  public-house  were  turned  out 
of  it  at  about  eleven  p.  m.  for  being  disorderly,  and  they  then  began  to 
fight  in  the  street  near  the  prosecutor's  window.  The  prisoner  sepa- 
rated himself  from  the  others,  and  went  to  the  other  side  of  the  street, 
and  picked  up  a  stone,  and  threw  it  at  tlie  persons  he  had  been  fighting 
with.  The  stone  passed  over  their  heads,  and  broke  a  large  plate-glass 
window  in  the  prosecutor's  house,  doing  damage  to  an  amount  exceed- 
ing £5.     The  jury  found  that  the  prisoner  threw  the  stone  at  the  people 

*  The  argument  is  omitted. 


SECT,  v.]  REGINA   V.    PEMBLITON.  143 

he  had  been  fighting  with,  intending  to  strike  one  or  more  of  them  with  it, 
but  not  intending  to  brealc  the  window.  The  question  is  whether  under 
an  indictment  for  unlawfully  and  maliciously  committing  an  injury  to 
the  window  in  the  house  of  tlie  prosecutor,  the  proof  of  these  facts  alone, 
coupled  with  the  finding  of  the  jury,  will  do.  Now  I  think  that  is  not 
enough.  The  indictment  is  framed  under  the  24  &  25  Vict.  c.  97,  s.  51. 
The  Act  is  an  Act  relating  to  malicious  injuries  to  propert}-,  and  section 
51  enacts  that  whosoever  shall  unlawfully  and  malicioush'  commit  any 
damage,  &c.,  to  or  upon  any  real  or  personal  property  whatsoever  of  a 
public  or  a  private  nature,  for  which  no  punishment  is  hereinbefore 
provided,  to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
There  is  also  the  58th  section  which  deserves  attention.  "  Every  pun- 
ishment and  forfeiture  by  this  Act  imposed  on  any  person  maliciously 
committing  any  offence,  whether  the  same  be  punishable  upon  indict- 
ment or  upon  summar3-  conviction,  shall  equally  apply  and  be  enforced, 
whether  the  otfence  shall  be  committed  from  malice  conceived  against 
the  owner  of  the  property'  in  respect  of  which  it  shall  be  committed, 
or  otherwise."  It  seems  to  me  on  both  these  sections  that  what  was 
intended  to  be  provided  against  by  the  Act  is  the  wilfully  doing  an 
unlawful  act,  and  that  the  act  must  be  wilfully  and  intentionally  done 
on  the  part  of  the  person  doing  it,  to  render  him  liable  to  be  convicted. 
Without  saying  that,  upon  these  facts,  if  the  jury  had  found  tliat  the 
prisoner  had  been  guilty  of  throwing  the  stone  recklessly,  knowing  that 
there  was  a  window  near  which  it  might  probably  hit,  I  should  have 
been  disposed  to  interfere  with  the  conviction,  yet  as  they  have  found 
that  he  threw  the  stone  at  the  people  he  had  been  fighting  with,  intend- 
ing to  strike  them  and  not  intending  to  break  the  window,  I  thuik  the 
conviction  must  be  quaslied.  I  do  not  intend  to  throw  any  doubt  on 
the  cases  which  have  been  cited,  and  which  show  what  is  sufficient  to 
constitute  malice  in  the  case  of  murder.  They  rest  upon  the  princi- 
ples of  the  common  law,  and  have  no  application  to  a  statutory  oflfence 
created  by  an  Act  in  which  the  words  are  carefuUy  studied. 

Blackburn,  J.  I  am  of  the  same  opinion,  and  I  quite  agree  that  it 
is  not  necessary  to  consider  what  constitutes  wilful  malice  aforethought 
to  bring  a  case  within  the  common  law  crime  of  murder,  when  we  are 
construing  this  statute,  which  says  that  whosoever  shall  unlawfully  and 
maliciously  commit  any  damage  to  or  upon  any  real  or  personal  prop- 
erty to  an  amount  exceeding  £5,  shall  be  guilty  of  a  misdemeanor. 
A  person  may  be  said  to  act  maliciously  when  he  wilfully  does  an 
unlawful  act  without  lawful  excuse.  The  question  here  is,  Can  the 
prisoner  be  said,  when  he  not  only  threw  the  stone  unlawfully,  but 
broke  the  window  unintentionally,  to  have  unlawfully  and  maliciously 
broken  the  window?  I  think  that  there  was  evidence  on  which  the  jury 
might  have  found  that  he  unlawfully  and  maliciously  broke  the  window, 
if  they  had  found  that  the  prisoner  was  aware  that  the  natural  and 
probalble  consequence  of  his  throwing  the  stone  was  that  it  might  break 
the  glass  window,  on  the  principle  that  a  man  must  be  taken  to  intend 


144  REGINA   V.   FAULKNER.  [CHAP.  II. 

what  is  the  natural  and  probable  consequence  of  his  acts.  But  the  jury 
have  not  found  that  the  prisoner  threw  the  stone,  knowing  that,  on  the 
other  side  of  the  men  he  was  tlirowing  at,  there  was  a  glass  window, 
and  that  he  was  recliless  as  to  whether  he  did  or  did  not  break  the 
window.  On  the  contrary,  they  have  found  that  he  did  not  intend  to 
break  the  window.  I  think  therefore  that  the  conviction  must  bt. 
quashed, 

PiGOTT,  B.     I  am  of  the  same  opinion. 

Lush,  J.  I  also  tliink  that  on  tliis  finding  of  the  jury  we  have  no 
alternative  but  to  hold  that  the  conviction  must  be  quashed.  The  word 
"  maliciously  "  means  an  act  done  eitlier  actually  or  constructively  with 
a  malicious  intention.  The  jury  might  have  found  that  he  did  intend 
actually  to  break  the  window,  or  constructively  to  do  so,  as  that  he 
knew  that  the  stone  might  probably  break  it  when  he  threw  it.  But 
they  have  not  so  found. 

Cleasby,  B.,  concurred.  Conviction  quashed. 


REGINA   V.   FAULKNER. 
Crown  Case  Reserved,  Ireland.     1877. 

[Reported  13  Cox  C.  C.  550] 

Case  reserved  by  Lawson,  J.,  at  the  Cork  Summer  Assizes,  1876. 
The  prisoner  was  indicted  for  setting  fire  to  the  ship  ''  Zemindar,"  on 
the  high  seas,  on  the  26th  day  of  June,  1876.  The  indictment  was  as 
follows:  ''That  Robert  Faulkner,  on  the  26th  day  of  June,  1876,  on 
board  a  certain  ship  called  the  '  Zemindar,'  the  property  of  Sandback, 
Tenne,  and  Co.,  on  a  certain  voyage  on  the  high  seas,  then  being  on 
tlie  high  seas,  feloniously,  unlawfully,  and  maliciousl}',  did  set  fire  to  the 
said  ship  '  with  intent  thereby  to  prejudice  the  said'  (these  words  were 
struck  out  at  the  trial  by  the  learned  judge,  and  the  following  words 
inserted,  'called  the  "Zemindar,"  the  property  of)  Sandback,  Tenne, 
and  Co.,  and  that  the  said  Robert  Faulkner,  on  the  day  and  year  afore- 
said, on  board  a  certain  ship  called  the  '  Zemindar,'  being  the  property 
of  Sandback,  Parker,  and  other,  on  a  certain  voyage  on  the  high  seas, 
then  being  upon  the  high  seas,  feloniously,  unlawfully,  and  maliciously, 
did  set  fire  to  the  said  ship,  with  intent  thereby  to  prejudice  the  said 
Sandback,  Parker,  and  other,  the  owners  of  certain  goods  and  chattels 
then  laden,  and  being  on  board  said  ship."  It  was  proved  that  the 
"  Zemindar"  was  on  her  voyage  home  with  a  cargo  of  rum,  sugar,  and 
cotton,  worth  £50,000.  That  the  prisoner  was  a  seaman  on  board,  that 
he  went  into  the  forecastle  hold,  opened  the  sliding  door  in  the  bulk- 
head, and  so  got  into  the  hold  where  the  rum  was  stored  ;  he  had  no 
business  there,  and  no  authority  to  go  there,  and  went  for  the  purpose 
of  stealing  some  rum  ;  that  he  bored  a  hole  in  the  cask  with  a  gimlet ; 
that  the  rum  ran  out;  that  when  trying  to  put  a  spile  in  the  hole  out  of 


SKCT.  v.]  REGINA   V.   FAULKNER.  145 

which  the  rum  was  running  he  had  a  lighted  match  in  his  hand  ;  that 
the  rum  caught  fire  ;  that  the  prisoner  himself  was  burned  on  the  arms 
and  neck  ;  and  that  the  ship  caught  fire  and  was  completely  destroyed. 
At  the  close  of  the  case  for  the  Crown,  counsel  for  the  prisoner  asked 
for  a  direction  of  an  acquittal  on  the  ground  that  on  the  facts  proved 
the  indictment  was  not  sustained,  nor  the  allegation  that  the  prisoner 
had  unlawfully  and  maliciously  set  fire  to  the  ship  proved.  The  Crown 
contended  that  inasmuch  as  the  prisoner  was  at  the  time  engaged  in 
the  commission  of  a  felony,  the  indictment  was  sustained,  and  the 
allegation  of  the  intent  was  immaterial. 

At  the  second  hearing  of  the  case,  before  the  Court  for  Crown  Cases 
Reserved,  the  learned  judge  made  the  addition  of  the  following  para- 
graph to  the  case  stated  by  him  for  the  court. 

"■  It  was  conceded  that  the  prisoner  had  no  actual  intention  of  burn- 
ing the  vessel,  and  I  was  not  asked  to  leave  any  question  to  the  jury 
as  to  the  prisoner's  knowing  the  probable  consequences  of  his  act,  or 
as  to  his  reckless  conduct." 

The  learned  judge  told  the  jury  that  although  the  prisoner  had  no 
actual  intention  of  burning  the  vessel,  still  if  they  found  he  was  en- 
gaged in  stealing  the  rum,  and  that  the  fire  took  place  in  the  manner 
above  stated,  they  ought  to  find  him  guilty.  The  jur}-  found  the  pris- 
oner guilty  on  both  counts,  and  he  was  sentenced  to  seven  years'  penal 
servitude.  The  question  for  the  court  was  whether  the  direction  of  the 
learned  judge  was  right ;  if  not,  the  conviction  should  be  quashed.-' 

Peter  O'Brien^  for  the  prisoner. 

The  Attorney  General  (May),  with  him  Green,  Q.  C,  for  the  Crown.^ 

O'Brien,  J.^  I  am  also  of  opinion  that  the  conviction  should  be 
quashed,  and  I  was  of  that  opinion  before  the  case  for  our  consideration 
was  amended  by  m}'  brother  Lawson.  I  had  inferred  from  the  original 
case  that  his  direction  to  the  juiy  was  to  the  effect  now  expressly  stated 
by  amendment,  and  that,  at  the  trial,  the  Crown's  counsel  conceded 
that  the  prisoner  had  no  intention  of  burning  the  vessel,  or  of  ignit- 
ing the  rum  ;  and  raised  no  questions  as  to  prisoner's  imagining  or 
having  any  ground  for  supposing  that  the  fire  would  be  the  result  or 
consequence  of  his  act  in  stealing  the  rum.  With  respect  to  Reg.  v. 
Pembliton,  12  Cox  C.  C  607,  it  appears  to  me  there  were  much  stronger 
grounds  in  that  case  for  upholding  the  conviction  than  exist  in  the  case 
before  us.  In  that  case  the  breaking  of  the  window  was  the  act  of  the 
prisoner.  He  threw  the  stone  that  broke  it ;  he  threw  it  with  the  un- 
lawful intent  of  striking  some  one  of  the  crowd  about,  and  the  breaking 
of  the  window  was  the  direct  and  immediate  result  of  his  act.     And  yet 

1  24  &  25  Vict.  c.  97,  s.  42,  "Whoever  shall  unlawfully  and  maliciously  set  fire  to, 
cast  away,  or  in  anywise  destroy  any  ship  or  vessel  .   .  .  shall  be  guilty  of  felony." 

2  Arguments  of  counsel  are  omitted. 

3  Concurring  opinions  of  Barry  and  Fitzgerald,  JJ.,  and  Fitzgerald,  B.,  and 
the  dissenting  opinion  of  Keogh,  J.  are  onaitted.  Dowse  and  Deasy,  BB.,  and 
Lawson,  J.  also  concurred.  —  En, 


146  REGINA  v.    FAULKNER.  [CHAP.  II. 

the  court  unanimously  quashed  the  conviction  upon  the  ground  that, 
although  the  prisoner  threw  the  stone  intending  to  strike  some  one  or 
more  persons,  he  did  not  intend  to  break  the  window.  The  courts 
above  have  intimated  their  opinion  that  if  the  jur}-,  upon  a  question  to 
that  effect  being  left  to  them,  had  found  tliat  the  prisoner,  knowing  the 
window  was  there,  might  have  reasonably  expected  that  the  result  of 
his  act  would  be  the  breaking  of  the  window,  that  then  the  conviction 
should  be  upheld.  During  the  argument  of  this  case  the  Crown  counsel 
required  us  to  assume  that  the  jury  found  tlieir  verdict  upon  the  ground 
that  in  their  opinion  the  prisoner  may  have  expected  that  the  fire  would 
be  the  consequence  of  his  act  in  stealing  the  rum,  but  nevertheless  did 
the  act  reckl(!ssly,  not  caring  whether  the  fire  took  place  or  not.  But 
at  the  trial  there  was  not  even  a  suggestion  of  any  such  ground,  and 
we  cannot  assume  that  the  jury  formed  an  opinion  which  there  was  no 
evidence  to  sustain,  and  which  would  be  altogether  inconsistent  with 
the  circumstances  under  which  the  fire  took  place.  The  reasonable 
inference  from  the  evidence  is  that  the  prisoner  lighted  the  match  for 
the  purpose  of  putting  the  spile  in  the  hole  to  stop  the  further  running 
of  the  rum,  and  that  while  he  was  attempting  to  do  so,  the  rum  came  in 
contact  with  the  lighted  match  and  took  fire.  The  recent  case  of  Reg. 
V.  Welch,  13  Cox  C.  C.  121,  has  been  also  referred  to,  and  has  been 
relied  on  by  the  Crown  counsel  on  the  ground  that,  though  the  jurj- 
found  that  the  prisoner  did  not,  in  fact,  intend  to  kill,  maim,  or  wound 
the  mare  that  had  died  from  the  injury  inflicted  b}'  the  prisoner,  the 
prisoner  was,  nevertheless,  convicted  on  an  indictment  charging  him 
with  having  unlawfully  and  maliciously  killed,  maimed,  or  wounded  the 
mare,  and  such  conviction  was  upheld  by  the  court.  But  on  referring 
to  the  circumstances  of  that  case  it  will  be  seen  that  the  decision  in  it 
does  not  in  an}-  way  conflict  with  that  in  the  previous  case  of  Reg.  v. 
Pembliton,  and  furnishes  no  ground  for  sustaining  the  present  convic- 
tion. Mr.  Justice  Lindlev,  who  tried  that  subsequent  case,  appears  to 
have  acted  in  accordance  with  the  opinion  expressed  b}'  the  judges  in 
Reg.  V.  Pembliton.  Besides  leaving  to  the  jurj-  the  question  of  prisoner's 
intent,  he  also  left  them  a  second  question,  namelj-,  whether  the  pris- 
oner, when  he  did  the  act  complained  of,  knew  that  what  he  was  doing 
would  or  might  kill,  maim,  or  wound  the  mare,  and  nevertheless  did  the 
act  recklessly,  and  not  caring  wliether  the  mare  was  injured  or  not. 
The  jury  answered  that  second  question  in  the  affirmative.  Their 
finding  was  clearly  warranted  by  the  evidence,  and  the  conviction  was 
properly  affirmed.  B}-  those  two  questions  a  distinction  was  taken 
between  the  case  of  an  act  done  by  a  party  with  the  actual  intent  to 
cause  the  injury  inflicted,  and  the  case  of  an  act  done  bj-  a  party  know- 
ing or  believing  that  it  would  or  might  cause  such  injury,  but  reckless 
of  the  result  whether  it  did  or  did  not.  In  the  case  now  before  us  there 
was  no  ground  whatever  for  submitting  to  the  jurj'  any  question  as  to 
the  prisoner  believing  or  supposing  that  the  stealing  of  the  rum  would 
be  attended  with  a  result  so  accidental  and  so  dangerous  to  himself 


SECT.  V.J  KEGINA   V.   FAULKNER.  147 

During  the  argument  doubts  were  suggested  as  to  the  soundness  of  the 
decision  in  Reg.  v.  Penibliton  ;  but  in  m}-  opinion  tliat  case  was  rightly 
decided,  and  should  be  followed.  Its  autliorit}'  was  not  questioned  in 
Reg.  V.  Welch,  in  which  the  judges  who  constituted  the  court  were 
different  from  those  who  had  decided  Reg.  v.  Pembliton,  with  the  excep- 
tion of  Lord  Coleridge,  who  delivered  the  judgments  of  the  court  on 
both  occasions. 

Pall.es,  C.  B.  I  concur  in  the  opinion  of  the  majorit}'  of  the  court, 
and  I  do  so  for  the  reasons  already  stated  by  m}'  brother  Fitzgerald. 
I  agree  with  my  brother  Keogh  that  from  the  facts  proved  the  inference 
might  have  been  legitimately  drawn  that  the  setting  fire  to  the  ship 
was  malicious  within  the  meaning  of  the  24  &  25  Vict.  c.  97.  I  am  of 
opinion  that  that  inference  was  one  of  fact  for  the  jury,  and  not  a  con- 
clusion of  law  at  wliich  we  can  arrive  upon  the  case  before  us.  There 
is  one  fact  from  which,  if  found,  that  inference  would,  in  my  opinion, 
have  arisen  as  matter  of  law,  as  that  the  setting  fire  to  the  ship  was  the 
probable  result  of  the  prisoner's  act  in  having  a  lighted  match  in  the 
place  in  question  ;  and  if  that  had  been  found  I  should  have  concurred 
in  the  conclusion  at  which  Mr.  Justice  Keogh  has  arrived.  In  my 
judgment  the  law  imputes  to  a  person  who  wilfully  commits  a  criminal 
act  an  intention  to  do  everything  which  is  the  probable  consequence  of 
the  act  constituting  the  corpus  delicti  which  actually  ensues.  In  my 
opinion  this  inference  arises  irrespective  of  the  particular  consequence 
which  ensued  being  or  not  being  foreseen  by  the  criminal,  and  whether 
his  conduct  is  reckless  or  the  reverse.  This  much  I  have  deemed  it 
right  to  say  to  prevent  misconception  as  the  grounds  upon  which  my 
opinion  is  based.  I  wish  to  add  one  word  as  to  Reg.  v.  Pembliton,  12 
Cox  C.  C.  607.  In  my  opinion  the  learned  judges  who  were  parties  to 
that  decision  never  intended  to  decide,  and  did  not  decide,  anything 
contrary  to  the  views  I  have  expressed.  That  they  did  not  deem  actual 
intention,  as  distinguished  from  implied  intention,  essential  is  shown 
by  the  subsequent  case  of  Reg.  v.  Welch,  in  which  an  indictment  under 
the  40th  section  of  the  same  Act  was  upheld,  although  actual  intention 
was  negatived  by  the  jury.  The  facts  found  in  answer  to  the  second 
question  in  that  case  cannot  have  been  relied  upon  as  evidence  of 
actual  intention.  As  evidence  they  would  have  been  valueless  in  face 
of  the  finding  negativing  the  fact  which  in  this  view  they  would  have 
but  tended  to  prove.  Their  value  was  to  indicate  a  state  of  facts  in 
which  intention  was  imputed  by  an  irrefutable  inference  of  law.  It  was 
not  germane  to  the  actual  decisions  in  Reg.  v.  Pembliton  and  Reg.  u. 
Welch  to  determine  whether  the  state  of  facts  from  which  this  inference 
of  law  arises  is  that  siTggested  in  the  first  case  and  acted  upon  by  the 
second,  or  the  circumstance  of  one  act  being  the  natural  consequence 
of  the  other.  Some  of  the  learned  judges,  no  doubt,  during  the  argu- 
ments and  in  their  judgments  in  the  first  case  indicate  a  state  of  facts 
from  which  this  inference  would  arise.  The}-  do  not  decide  that  the 
same  inference  might  not  arise  in  the  other  state  of  facts  to  which  J 


148  REGINA   V.   LATIMER.  [CHAP.   II. 

have  alluded.  If,  contrary  to  my  own  view  of  that  case,  it  shall  be  held 
to  involve  that  intention  to  do  that  which  is  a  necessary  consequence 
of  a  wrongful  act  wilfully  committed  is  not  an  inference  irrefutable  as 
matter  of  law,  I  must  say,  with  unfeigned  deference,  that  I  shall  hold 
myself  free  hereafter  to  decline  to  follow  it.  The  Lord  Chief  Justice 
of  the  Common  Pleas,  who,  in  consequence  of  illness,  has  been  unable 
to  preside  to-day,  has  authorized  me  to  state  that  he  considers  that  the 
case  before  us  is  concluded  by  Reg.  v.  Pembliton. 

Conviction  quashed. 


REGINA  V.   LATIMER. 
Crow^n  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C.  70.] 

Case  stated  by  the  learned  Recorder  for  the  borough  of  Devonport 
as  follows  :  — 

The  prisoner  was  tried  at  the  April  Quarter  Sessions  for  the  borough 
of  Devonport  on  the  10th  day  of  April,  1886. 

The  prisoner  was  indicted  for  unlawfully  and  maliciously  wounding 
Ellen  Rolston.  There  was  a  second  count  charging  him  with  a  com- 
mon assault. 

The  evidence  showed  that  the  prosecutrix,  Ellen  Rolston,  kept  a 
public-house  in  Devonport;  that  on  Sunday,  the  14th  day  of  February, 
1886,  the  prisoner,  who  was  a  soldier,  and  a  man  named  Horace 
Chappie  were  in  the  public-house,  and  a  quarrel  took  place,  and  event- 
ually the  prisoner  was  knocked  down  by  the  man  Horace  Chappie. 
The  prisoner  subsequently  went  out  into  a  yard  at  the  back  of  the 
house.  In  about  five  minutes  the  prisoner  came  back  hastily  through 
the  room  in  which  Chappie  was  still  sitting,  having  in  his  hand  his 
belt  which  he  had  taken  off.  As  the  prisoner  passed  he  aimed  a  blow 
with  his  belt  at  the  said  Horace  Chappie,  and  struck  him  slightly  ; 
the  belt  bounded  off  and  struck  the  prosecutrix,  who  was  standing 
talking  to  the  said  Horace  Chappie,  in  the  face,  cutting  her  face  open 
and  wounding  her  severely. 

At  the  close  of  the  case  the  learned  Recorder  left  these  questions  to 
the  jury:  1.  Was  the  blow  struck  at  Chappie  in  self-defence  to  get 
through  the  room,  or  unlawfully  and  maliciously?  2.  Did  the  blow  so 
struck  in  fact  wound  Ellen  Rolston?  3.  Was  the  striking  Ellen 
Rolston  purely  accidental,  or  was  it  such  a  consequence  as  the  pris- 
oner should  have  expected  to  follow  from  the  blow  he  aimed  at 
Chappie? 

The  jury  found:  1.  That  the  blow  was  unlawful  and  malicious. 
2.  That  the  blow  did  in  fact  wound  Ellen  Rolston.  3.  That  the  strik- 
ing Ellen  Rolston  was  purely  accidental,  and  not  such  a  consequence 
of  the  blow  as  the  prisoner  ought  to  have  expected. 


SECT,  v.]  KEGINA   V.   LATIMER.  149 

Upon  these  findings  the  learned  Recorder  directed  a  verdict  of 
guilty  to  be  entered  to  the  first  count,  but  respited  judgment,  and 
admitted  the  prisoner  to  bail,  to  come  up  for  judgment  at  tlie  next 
sessions. 

The  question  for  the  consideration  of  the  court  was,  whether  upon 
the  facts  and  the  findings  of  the  jury  the  prisoner  was  rightly  con- 
victed of  the  offence  for  which  he  was  indicted. 

By  sect.  20  of  24  &  25  Vict.  c.  100,  it  is  enacted  that,  "  Whosoever 
shall  unlawfully  and  maliciously  wound  or  inflict  any  grievous  bodily 
harm  upon  any  other  person,  either  with  or  without  any  weapon  or 
instrument,  shall  be  guilty  of  misdemeanor." 

Croft  for  the  prisoner.^ 

Helpman,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.     I  am  of  opinion  that  this  conviction  must 
be  sustained.     In  the  first  place,   it  is  common  knowledge  that,  if  a 
person  has  a  malicious  intent  towards  one  person,  and  in  carrying  into 
eff'ect  that  malicious  intent  he  injures  another  man,  he  is  guilty  of 
what  the  law  considers  malice  against  the  person  so  injured,  because 
he  is  guilty  of  general  malice;  and  is  guilty  if  the  result  of  his  unlaw- 
ful act  be  to  injure  a  particular  person.     That  would  be  the  law  if  the 
case  were  res  integra;  but  it  is  not  re.s  Integra  because,  in  Reg.  v. 
Hunt,  a  man   in   attempting   to   injure  A.  stabbed    the   wrong   man. 
There,  in  point  of  fact,  he  had  no  more  intention  of  injuring  B.  than 
a  man  has  an  intent  to  injure  a  particular  person  who  fires  down  a 
street  where  a  number  of  persons  are  collected,  and  injures  a  person 
he  never  heard  of  before.     But  he  had  an  intent  to  do  an  unlawful  act, 
and  in  carrying  out  that  intent  he  did  injure  a  person  ;  and  the  law 
says   that,  under  such  circumstances,  a  man  is  guilty  of  maliciously 
wounding  the  person  actually  wounded.     That  would  be  the  ordinary 
state  of  the  law  if  it  had  not  been  for  the  case  of  Reg.  v.  Pembliton. 
But  I  observe  that,  in  such  an  indictment,  as  in  that  case,  the  words 
of  the  statute  carry  the   case  against  the  prisoner  more  clearly  still, 
because,  by  sect.  18  of  the  statute  24  &  25  Vict.  c.  100,  it  is  enacted 
that:   "Whosoever  shall    unlawfully  and    mahciously  by   any    means 
whatsoever  wound  .  .  .  any  person    .  .   .  with  intent  ...  to  maim, 
disfigure,  or  disable  any  person  .  .  .  shall  be  guilty  of  felony  ; "  and 
then  sect.  20  enacts  that  "  whosoever  shall  unlawfully  and  maliciously 
wound  .  .  .  any  other  person  .  .  .  shall  be  guilty  of  a  misdemeanor  ;  " 
and  be  liable  to  certain  punishments.     Therefore,  the  language  of  the 
18th  and  20th  sections  are  perfectly  different ;  and  it  must  be  remem- 
bered that  this  is  a  conviction  for  an  offence  under  the  20th  section. 
Now,  the  Master  of  the  Rolls  has  pointed  out  that  these  very  sections 
are  in  substitution  for  and  correction  of  the  earlier  statute  of  9  Geo.  4, 
c.  31,  where  it  was  necessary  that  the  act  should  have  been  done  with 
intent  to   maim,  disfigure,  or  disable  such  person,   showing  that  the 

1  The  argument  is  omitted. 


150  REGINA    V.    LATIMER.  [CHAP.  II. 

intent  must  have  been  to  injure  the  person  actually  injured.  Thosw 
words  are  left  out  in  the  later  statute,  and  the  words  are  "  wound  an.^ 
other  person."  I  cannot  see  that  there  could  be  any  question,  but  foi 
the  case  of  Reg.  v  Penibliton.  Now,  I  think  that  that  case  was  prop- 
erly de(!ided  ;  but  upon  a  ground  which  renders  it  clearly  distinguish- 
able from  the  present  case.  That  is  to  say,  the  statute  which  was 
under  discussion  in  Reg.  v.  Pembliton  makes  an  unlawful  injur}'  to 
property  punishable  in  a  certain  way.  In  that  case  the  jur}'  and  the 
facts  expressly  negatived  that  there  was  any  intent  to  injure  any  prop- 
erty at  all ;  and  the  court  held  that,  in  a  statute  which  created  it  an 
offence  to  injure  property,  there  must  be  an  intention  to  injure  property 
in  order  to  support  an  indictment  under  that  statute.  But  for  that 
case  Mr.  Croft  is  out  of  court,  and  I  therefore  think  that  this  convic- 
tion should  be  sustained. 

Lord  Eshek,  M.  R.  I  am  of  the  same  opinion.  It  seems  to  me 
that  the  case  of  Reg.  v.  Pembliton  is  the  ouly  case  which  could  be 
cited  against  a  well-known  principle  of  law.  But  that  case  shows  that 
there  was  no  intention  to  injure  an}'  propert}'  at  all ;  therefore  there 
was  no  intent  to  commit  the  crime  mentioned  in  the  Act. 

BowEN,  L.  J.  I  am  also  of  opinion  that  this  conviction  should  be 
affirmed.  It  is  quite  clear  that  this  offence  was  committed  without  an}' 
malice  in  the  mind  of  the  prisoner,  and  that  he  had  no  intention  of 
woiniding  Pollen  Rolston.  The  only  difficulty  that  arises  is  from  Reg. 
V,  Pembliton,  which  was  a  case  under  an  Act  of  Parliament  which 
does  not  deal  with  all  malice  in  general,  but  with  malice  towards  prop- 
erty ;  and  all  that  case  holds  is,  that  though  the  prisoner  would  have 
been  guilty  of  acting  maliciously  within  the  common  law  meaning  of 
the  term,  still  he  was  not  guilty  of  acting  maliciously  within  the  mean- 
ing of  a  statute  which  requires  a  malicious  intent  to  injure  property. 
Had  the  prisoner  meant  to  strike  a  pane  of  glass,  and  without  any 
reasonable  expectation  of  doing  so  injured  a  person,  it  might  be  said 
that  the  malicious  intent  to  injure  property  was  not  enough  to  sustain 
a  prosecution  under  this  statute.  But,  as  the  jury  found  that  the 
prisoner  intended  to  wound  Chappie,  I  am  of  opinion  that  he  acted 
maliciously  within  the  meaning  of  this  statute. 

Field,  J.  I  am  also  of  opinion  that  this  conviction  must  be  af- 
firmed. I  think  this  a  very  important  case  and  one  of  very  wide 
application,  and  am  very  glad  that  it  has  come  before  this  court,  and 
has  been  carefully  considered  and  decided  so  that  there  may  be  no 
doubt  about  the  matter. 

Manisty,  J.  I  do  not  propose  to  add  more  than  a  few  words.  The 
facts  in  this  case  raise  an  exceedingly  important  question,  because  the 
man  Chappie,  who  was  intended  to  be  struck,  was  standing  close  by 
the  woman  who  was  wounded,  and  who  was  talking  to  him  ;  and  the 
prisoner  intending  to  strike  Chappie  with  the  belt  did  strike  him,  but 
the  belt  bounded  ofl'  and  struck  Pollen  Rolston.  It  seems  to  me  that 
the  first  and  second  findings  of  the  jury  justify  the  conviction,  because 


SECT,  v.]  REX   V.    KNIGHT.  151 

they  are  in  these  terras  :  "  The  jur}'  found  that  the  blow  was  unlawful 
and  malicious,  and  that  it  did  in  fact  wound  Ellen  Rolston ;  "  and  that 
being  so,  I  think  that  the  third  finding  does  not  entitle  the  prisoner  to 
an  acquittal.  It  is  trne  he  did  not  intend  to  strike  Ellen  Rolston,  but 
he  did  intend  to  strike  Chappie,  and  in  doing  so  wounded  Ellen  Rols- 
ton ;  therefore  I  think  that  the  third  finding  is  quite  immaterial,  and 
this  conviction  should  be  affirmed.^ 

Conviction  affirmed. 


REX  V.  KNIGHT. 

Crown  Case  Reserved.     1782. 

[Reported  2  East,  Pleas  of  the  Crown,  510.] 

The  prisoners  were  indicted  for  feloniously  and  burglariously  break- 
ing and  entering  the  dwelling-house  of  Mary  Snelling  at  East  Grin- 
stead,  in  the  night  of  November  14,  1781,  with  intent  to  steal  tlie  goods 
of  Leonard  Hawkins,  then  and  there  being  in  the  said  dwelling-house. 
It  appeared  that  L.  Hawkins,  being  an  excise  officer,  had  seized  seven- 
teen bags  of  tea  on  the  same  month  at  a  Mrs.  Tilt's,  in  a  shop  entered 
in  the  name  of  Smith,  as  being  there  without  a  legal  permit,  and  had 
removed  the  same  to  Mrs.  Snelling's  at  East  Grinstead,  where  Hawkins 
lodged.  The  tea,  the  witnesses  said,  the}"  supposed  to  belong  to  Smith  ; 
and  that  on  the  night  of  November  14  the  prisoners  and  divers  other 
persons  broke  open  the  house  of  Mary  Snelling  with  intent  to  take  this 
tea.  It  was  not  proved  that  Smith  was  in  company  with  them  ;  but 
the  witnesses  swore  that  the}"  supposed  the  fact  was  committed  either 
in  company  with  or  by  the  procurement  of  Smith.  The  jury  were  di- 
rected to  find  the  prisoners  guilty,  on  the  point  being  reserved  ;  and 
being  also  directed  to  find  as  a  fact  with  what  intent  the  prisoners  broke 
and  entered  the  house,  they  found  that  they  intended  to  take  tbe 
goods  on  the  behalf  of  Smith.  In  Easter  term  following  all  the  judges 
held  that  the  indictment  was  not  supported,  there  being  uo  intention  to 
steal,  however  outrageous  the  behavior  of  the  prisoners  was  in  thus 
endeavoring  to  get  back  the  goods  for  Smith.^ 

1  See  ace.  (woundiu<^  with  intent  to  do  bodily  harm)  Reg.  v.  Lynch,  1  Cox  C.  C. 
361  ;  Reg.  v  Stofford,  11  Cox  C.  C.  643;  (with  intent  to  kill)  Reg.  v.  Smith,  7  Cox 
C.  C.  51.  — Ed. 

2  Acc.  Com.  V.  Newell,  7  Mass.  245.  —  Ed. 


152  UNITED    STATES    V.    DAVIS.  [CHAP.  II. 


SECTION   VI. 

Jurisdiction  over  mi  Offence. 

UNITED    STATES   v.   DAVIS. 

U.  S.  Circuit  Court,  District  of  Massachusetts.     1837. 

[Reported  2  Summer,  482.] 

Indictment  for  manslaughter.  It  appeared  that  the  defendant, 
master  of  an  American  whale  ship,  shot  and  killed  a  man  on  the  deck 
of  another  vessel  which  lay  alongside  ;  both  vessels  lay  at  the  time  in 
a  harbor  of  one  of  the  Society  Islands.^ 

Story,  J.  We  are  of  opinion  that,  under  the  circumstances  estab- 
lished in  evidence,  there  is  no  jurisdiction  in  this  cause. 

What  we  found  ourselves  upon  in  this  case  is,  that  the  offence,  if 
any,  was  committed,  not  on  board  of  the  American  ship  "Rose,"  but 
on  board  of  a  foreign  schooner  belonging  to  inhabitants  of  the  So- 
ciety Islands,  and,  of  course,  under  the  territorial  government  of  the 
king  of  the  Society  Islands,  with  which  kingdom  we  have  trade  and 
friendly  intercourse,  and  wliich  our  government  may  be  presumed 
(since  we  have  a  consul  there)  to  recognize  as  entitled  to  the  rights  and 
sovereignty  of  an  independent  nation,  and  of  course  entitled  to  try 
offences  committed  within  its  territorial  jurisdiction.  I  say  the  offence 
was  committed  on  board  of  the  schooner  ;  for  although  the  gun  was 
fired  from  the  ship  "  Rose,"  the  shot  took  effect  and  the  death  hap- 
pened on  board  of  the  schooner ;  and  the  act  was,  in  contemplation  of 
law,  done  where  the  shot  took  effect.  So  the  law  was  settled  in  the 
case  of  Rex  v.  Coombs,  1  Leach  Cr  Cas.  432,  where  a  person  on  the  high 
seas  was  killed  by  a  shot  fired  by  a  person  on  shore,  and  the  offence 
was  held  to  be  committed  on  the  high  seas,  and  to  be  within  the  Admi- 
ralty jurisdiction.  Of  offences  committed  on  the  high  seas  on  board  of 
foreign  vessels  (not  being  a  piratical  vessel),  but  belonging  to  persons 
under  the  acknowledged  government  of  a  foreign  country,  this  court 
has  no  jurisdiction  under  the  Act  of  1790,  ch.  36,  §  12.     That  was  the 

1  This  short  statement  of  facts  has  been  substituted  for  that  contained  in  the 
report. 


SECT.  VI.]  ♦  STATE    V.    GESSERT.  153 

doctrine  of  the  Supreme  Court  in  United  States  v.  Palmer,  3  Wheat.  R. 
610,  and  United  States  v.  Khntoek,  5  Wheat.  R.  144,  and  United 
States  i'.  Holmes,  5  Wheat.  R.  412  ;  applied,  it  is  true,  to  another  class 
of  cases,  but  in  its  scope  embracing  the  present.  We  lay  no  stress  on 
the  fact  that  the  deceased  was  a  foreigner.  Our  judgment  would  be 
the  same  if  he  had  been  an  American  citizen.  We  decide  the  case 
wholly  on  the  ground  tliat  the  schooner  was  a  foreign  vessel  belonging 
to  foreigners,  and  at  the  time  under  the  acknowledged  jurisdiction  of 
a  foreign  government.  We  think  that  under  such  circumstances  the 
jurisdiction  over  the  offence  belonged  to  the  foreign  government,  and 
not  to  the  courts  of  the  United  States  under  the  Act  of  Congress. 
The  jury  immediately  returned  a  verdict  of  not  guilty. 


STATE  V.  GESSERT. 

Supreme  Court  of  Minnesota.     1875. 

[Reported  21  Maine  sola,  3Q9.] 

Berry,  J.  The  indictment  in  this  case  was  found  by  a  grand  jury 
of  Washington  County,  and  charges  the  defendant  with  committing  the 
crime  of  murder,  by  feloniously,  &c.,  inflicting  upon  David  Savazyo, 
on  Aug.  28,  1874,  in  said  county,  a  stab  and  wound,  of  which,  upon 
the  same  day,  Savazyo  died  in  the  county  of  Pierce,  and  State  of  Wis- 
consin. The  question  in  the  case  is  whether  the  indictment  charges 
the  commission  of  an  offence  in  the  county  of  Washington.  It  is  for 
his  acts  that  defendant  is  responsible.  They  constitute  his  offence. 
The  place  where  they  are  committed  must  be  the  place  where  his  offence 
is  committed,  and  therefore  the  place  where  he  should  be  indicted  and 
tried.  In  this  instance  the  acts  with  which  defendant  is  charged, 
to  wit,  the  stabbing  and  wounding,  were  committed  in  Washington 
County.  The  death  which  ensued  in  Pierce  County,  though  it  went  to 
characterize  the  acts  committed  in  Washington  County,  was  not  an  act 
of  defendant  committed  in  Wisconsin,  but  the  consequence  of  his  acts 
committed  in  Washington  County,  against  the  peace  and  dignity  of  the 
State  of  Minnesota.  We  are  therefore  of  opinion  that  the  indictment 
charges  the  commission  of  the  crime  of  murder  in  AVashington  County, 
and,  upon  the  questions  certified  to  this  court  by  the  court  below,  that 
the  demurrer  to  the  indictment  should  be  overruled.  Riley  v.  State, 
9  Humph.  646  •,  Com.  v.  Parker,  2  Pick.  550,  559  ;  1  East,  P.  C.  c.  5, 
§  128  ;  Rex  v.  Burdett,  4  B.  &  Aid.  95,  173  ;  Grosvenor  v.  Inhabitants, 
&c.,  12  East,  244 ;  People  v.  Gill,  6  Cal.  637  ;  State  v.  Carter,  3  Dutch. 
499  ;  1  Hale  P.  C.  c  33  ;  1  Bish.  Cr.  Law,  §  83  ;  1  Bish.  Cr.  Proc. 
§  67  ;  2  Wharton  Cr.  Law,  §  1052.^ 

1  Ace.  Green  v.  State,  66  Ala.  40 ;  U.  S.  v.  Guiteau,  1  Mack.  498.  See  also  the 
following  cases  for  decision  upon  the  locality  of  crime  :  Allison  v.  Com.,  83  Ky.  254 
(receiving  stolen  goods)  ;  People  v.  Arnold,  46  Mich.  268  (conspiracy) ;  Lovelace  v. 
State,  12  Lea,  721  (embezzlement).  —  Ed. 


154  KEGINA   V.   ARMSTRONG.  [CHAP.  II. 

REGINA   V.  ARMSTRONG. 

Liverpool  Assizes.     1875. 

[Reported  13  Cox  C.  C.  184.] 

John  Armstrong  was  charged  with  the  wilful  murder  of  Lawrence 
Harrington,  on  board  the  hulk  JSent,  in  the  Bonny  River,  Africa,  on 
the  4th  of  May,  1875.^  .  .  . 

It  was  proved  in  evidence  that  the  Jient  had  been  a  three-masted 
sailing  ship,  of  1324  tons  register,  and  was  registered  as  a  British  ship, 
though  not  British  built.  That  she  had  for  eighteen  months  at  least 
been  dismasted,  and  employed  as  a  floating  depot  or  receiving  ship  on 
the  Bonny  Station  for  a  line  of  commercial  steamers  trading  between 
Liverpool  and  that  port ;  that  she  swung  with  the  tide  and  floated  in 
the  tideway  of  the  river,  and  that  she  hoisted  the  British  ensign  at  the 
peak.  The  general  appointments  as  a  ship,  boats,  etc.,  remained  ; 
the  masts  had  been  cut  down  to  form  a  support  for  an  awning  or  house 
on  deck,  but  the  rigging  had  been  taken  away.  The  prisoner  was  mate 
of  the  Kent,  and  in  the  evening  of  the  4th  day  of  May  he  stealthily 
approached  the  captain  as  he  was  standing  near  the  stern  and  leaning 
over  the  taffrail  of  the  ship,  and  took  hold  of  him  by  the  collar  of  his 
coat  and  the  seat  of  his  trousers  and  flung  him  overboard.  The  body 
of  the  captain  in  falling  struck  the  quarter  rail  or  gallery  of  the  Kent, 
and  bounded  off ;  and  the  back  of  his  head,  as  was  deposed  by  one 
witness,  then  struck  the  gunwale  of  a  boat  that  was  lying  moored  on 
the  port  side,  leaving  marks  of  blood.  The  body  then  fell  into  the 
water,  and  was  never  seen  again,  though  five  or  six  boats  were  imme- 
diately put  out  in  search.  The  river  was  running  out  very  rapidly,  at 
the  rate  of  four  to  five  knots  an  hour.  It  was  at  this  point  six  or  seven 
miles  broad,  and  the  nearest  ship  was  probably  a  thousand  yards  dis- 
tant. The  station  of  the  ship  was  at  about  seven  miles  from  the  bar, 
one  and  a  half  miles  from  the  easterly  or  southern  shore,  and  more  than 
five  from  the  northern  shore.  One  of  the  witnesses  said  the  river  was 
infested  with  sharks,  and  that  bathing  was  forbidden  on  that  account, 
but  admitted  in  cross-examination  he  had  never  seen  any. 

Cottingham,  for  the  prisoner,  submitted  .  .  .  that  the  murder,  if 
murder  it  were,  was  not  committed  on  board  the  Kent,  and  was  not  a 
completed  criminal  act  on  board  that  ship.  That  at  the  utmost  there 
had  only  been  an  assault  on  board  the  ship,  and  that  the  ultimate  con- 
sequence of  the  act,  where  it  was  only  a  possible  consequence,  could 
not  be  assumed  to  have  occurred  on  boai-d  the  ship.   .   .   . 

His  LoRDsnip  [Archibald,  J.]  overruled  all  the  objections,  and 
pointed  out  that  there  was  abundant  ^^r/ma/V/ae  evidence  that  the  ship 
was  a  British  ship,  and  that  this  had  not  been  rebutted  ;  that  the  crime 

*  Only  80  much  of  the  case  as  discusses  the  question  of  jurisdiction  is  given.  —  Ed. 


SECT.  VI.]  JACKSON    V.    COMMONWEALTH.  155 

had  been  committed  on  board  a  British  ship,  and  on  the  high  seas,  and 
that  it  was  not  necessary  that  the  act  should  have  been  completed  on 
board,  as  it  was  a  direct  consequence  of  the  felonious  assault. 

The  jury  found  the  prisoner  guilty  of  manslaughter,   and  he  was 
sentenced  to  twenty  years  penal  servitude. 


JACKSON   V.  COMMONWEALTH. 
Court  of  Appeals  of  Kp:ntucky.     1897. 

[Reported  100  A'^.  239.] 

The  defendant  and  one  Walling  were  indicted  for  the  murder  of 
Pearl  Bryan  in  Campbell  County,  Kentucky.  Tlie  evidence  indicated 
that  the  two  persons  accused  had  attempted  to  kill  the  deceased  by 
giving  her  poison  in  Ohio ;  that  she  became  unconscious,  and  was 
believed  by  them  to  be  dead  ;  that  they  brought  her  across  the  Ohio 
River  into  Kentucky,  and  there  cut  off  her  head,  and  thus  caused  her 
death.  The  court  at  the  trial  charged:  "  If  the  jury  believe  from 
all  the  evidence  beyond  a  reasonable  doubt  that  the  defendant,  Scott 
Jackson,  wilfully,  feloniously,  and  with  malice  aforethought,  himself 
attempted  or  aided  or  abetted  or  procured  another  to  attempt  to  kill 
Pearl  Bryan,  but  she  was  not  thereby  killed,  and  that  said  Scott  Jack- 
son, in  this  count}'  and  State,  before  the  14th  day  of  February,  1896, 
though  believing  said  Pearl  Bryan  was  then  dead,  for  whatever  purpose, 
cut  her  throat  with  a  knife  or  other  sharp  instrument  so  that  she  did 
then  and  there,  and  because  thereof  die,  they  will  find  said  Scott 
Jackson  guilty  of  murder." 

On  appeal  this  charge  was  held  to  be  correct.  The  defendant  moved 
for  a  rehearing.^ 

Du  Rklle,  J.  With  great  earnestness,  force  and  plausibilit}'  two 
contentions  are  made  by  the  petitions  for  rehearing  in  this  case  and  in 
the  case  of  Walling  v.  Commonwealth  : 

1st.  That  no  facts  which  occurred  in  the  foreign  jurisdiction  of  Ohio 
can  be  tacked  on  to  facts  which  occurred  in  Kentucky  for  the  purpose 
of  supplying  the  elements  necessarj-  to  constitute  the  crime  of  murder 
in  Kentu(;ky. 

2d.  (And  this  appears  to  be  the  point  chiefly  relied  on)  That  in 
giving  its  instructions  to  the  jury  the  trial  court  is  not  authorized  to 
refer  to  any  fact  which  occurred  in  the  foreign  jurisdiction.  Other 
suggestions  are  made  in  the  petitions,  but  in  our  judgment  do  not 
require  specific  response. 

These  two  contentious  may  be  considered  together,  as  the  first  is 

1  This  short  statement  of  the  facts  upon  which  the  petition  for  a  rehearing  is  baaed 
is  abridged  from  the  opinion  given  after  the  first  argument.  —  Ed. 


156  JACKSON    V.    COMMONWEALTH.  [CHAP.  II, 

necessarily  raised  and  considered  in  the  decision  of  the  second,  and 
so  treated  in  the  petition. 

Reduced  to  its  lowest  terms,  the  claim  of  counsel  is  that  an  attempt 
to  commit  a  murder  in  another  State,  supposed  b}-  the  guilt}-  party  to 
have  been  there  successful,  but  in  reality  completed  in  this  State, 
though  by  an  act  not  by  him  believed  to  be  the  consummation  of  his 
purpose,  is  not  in  this  State  punishable. 

Such  is  not  nor  sliould  it  be  the  law.  By  the  law  of  this  State  a 
crime  is  punishable  in  the  jurisdiction  in  which  it  has  effect.  Statutes 
in  numbers  have  been  passed  by  the  general  assembly  of  this  Common- 
wealth providing  that  jurisdiction  should  be  had  of  crimes  in  the  county 
in  which  the  crime  became  effectual.  (Chapter  36,  article  2,  Kentuclcy 
Statutes.)  Such  we  believe  to  have  been  the  common  law  before  such 
enactments. 

Assuming  that  what  the  jury  found  was  true,  in  what  State  or  district 
could  the  crime  be  punished?  If  not  here,  where?  If  we  concede  the 
claims  of  counsel  for  appellants  no  serious  crime  was  conjmitted  in 
Ohio.  Nothing  was  there  done  but  an  ineffective  attempt  to  murder. 
None  was  committed  there.  What  was  done  in  this  jurisdiction  was 
only  the  mutilation  of  a  supposed  corpse,  and  yet  the  fact,  established 
b}'  overwhelming  testimony,  remains  that  the  crime  has  been  com- 
mitted. Not  all  the  refinements  of  counsel  can  lead  us  from  the  con- 
clusion that,  when  a  crime  has  been  completed  the  result  of  which  is  a 
death  in  this  Commonwealth,  we  can  take  jurisdiction  of  the  offence. 

Not  for  a  moment  can  we  admit  as  law  the  logical  conclusion  of 
counsel's  argument,  namely,  tliat  there  is  a  variety  of  murder,  which, 
by  reason  of  error  in  its  commission,  is  not  anywhere  in  any  jurisdic- 
tion punishable  ;  not  in  Ohio,  for  the  reason  that  the  attempt  there 
made  was  not  successful ;  not  in  Kentucky,  for  the  reason  that  the  act 
there  done,  and  which  accomplished  and  completed  the  actual  killing, 
was  done  upon  the  supposition  that  the  murder  had  already  been 
accomplished. 

One  reliance  of  tiie  defence  upon  petition  for  rehearing  is  that  the 
indictment  charges  murder  by  cutting  the  throat  or  decapitation,  and 
that  the  instructions  permit  and  require  the  jury  to  consider  a  previous 
attempt  to  kill  in  a  foreign  State  and  by  different  means.  But  in  our 
opinion  it  was  not  error  in  the  instructions  to  present  to  the  jury  evi- 
dential facts  whicli,  if  found  to  be  true,  showed  the  criminal  nature  of 
the  act  by  which  the  offence  was  completed. 

We  see  no  good  reason  why  we  should  not  consider  the  motive  which 
Inspired  an  attempted  crime  in  another  sovereignt}-,  and  the  circum- 
stances of  the  attempt,  with  the  view  to  determine  the  character, 
criminal  or  not,  of  the  ultimate  fact  which  took  place  in  this  sov- 
ereignt}' ;  nor  is  such  a  determination  an  invasion  of  the  constitutional 
right  of  the  accused  to  a  speedy  "■  public  trial  by  an  impartial  jury  of 
the  vicinage."  For  the  accused  himself  selected  the  vicinage  in  which 
the  final  act  occurred,  and  thus  himself  gave  jurisdiction  to  the  court 


SECT.  VI.]  STATE    V.    WYCKOFF.  157 

which  determined  the  criminal  character  of  that  act.  Nor  can  we  con- 
sider as  serious  tlie  contention  that  the  ruling  of  the  trial  court,  approved 
b}-  the  opinion  in  this  case,  is  punishment  in  Kentucky  of  an  offence 
committed  in  another  jurisdiction,  and  there  again  punishable,  so  as  to 
come  within  the  constitutional  inhibition  against  a  citizen  being  twice 
put  in  jeopardy.  On  counsel's  own  contention  no  completed  crime 
existed  in  Ohio,  and  the  crime  committed,  if  punishable  under  this 
State's  law,  can  not  further  or  again  be  punished  there.  , . . 

We  have  carefulh'  examined  the  immense  mass  of  testimony  in  tlie 
case,  and  see  no  error  to  the  prejudice  of  any  substantial  right  of  the 
appellant. 

The  petition  for  rehearing  is  overruled. 


STATE  V.  WYCKOFF. 
Supreme  Court  of  New  Jersey.     1864. 

[Rfijiorted  2  Vrootn,  65.] 

Beasley,  C,  J.  The  defendant  was  convicted  before  the  Court  of 
Oyer  and  Terminer,  on  an  indictment  containing  two  counts,  the  first 
of  which  charges  him  with  the  larceny  of  certain  goods  of  a  value  ex- 
ceeding twenty  dollars,  and  the  other  with  receiving  goods  knowing 
them  to  be  stolen. 

It  appeared  that  the  defendant  was  in  New  York  at  the  time  of  the 
theft,  and  while  in  that  state  he  made  an  arrangement  with  one  Kelly 
to  come  into  this  state  and  steal  the  articles  in  question  and  to  bring 
and  deliver  them  to  him  in  New  York.  This  arrangement  was  carried 
into  effect,  —  the  articles  being  stolen  by  Kelly  and  delivered  to  the 
defendant  in  New  York.  The  defendant  was  not  in  this  state  at  any 
time,  from  the  inception  to  the  conclusion  of  the  transaction.  The 
Court  of  Oyer  and  Terminer  have  asked  the  advisory  opinion  of  this 
court  upon  two  points  :  — 

First.  Whether  proof  of  the  above  stated  facts  will  support  the 
indictment. 

Second.  Has  the  defendant  committed  any  offence  indictable  by  the 
laws  of  this  state  ? 

In  regard  to  the  first  point,  the  circumstances  proved  on  the  trial 
established  the  fact  that  Kelly  was  guilty  of  the  crime  of  grand  larceny 
in  this  state.  Kelly  therefore  committed  a  felony,  and  consequently, 
as  the  defendant  was  not  present,  either  actually  or  constructively,  at 
the  commission  of  the  offence,  he  could  not  be  a  principal  therein,  but 
was  an  accessory  before  the  fact.     Kelly  did  the  act,  and  the  defend- 


158  STATE    V.    WYCKOFF.  [CHAP.  II. 

ant's  will  contributed  to  it ;  but  it  was  committed  while  he  was  too  far 
from  the  act  to  constitute  him  a  principal.  The  distinction  in  felonies 
between  the  principal  and  accessories  before  and  after  the  fact  is  cer- 
tainly technical,  and  has  been  sometimes  regarded  as  untenable  ,•  but 
it  is  too  firmly  established  to  be  exploded  by  judicial  authority.  It 
has  always  been  regarded,  in  its  essential  features,  as  a  part  of  the 
criminal  law  of  this  state,  and  its  existence  is  recognized  both  in  our 
statutes  and  in  a  number  of  the  reported  decisions.  State  v.  Cooper, 
1  Green,  373  ;  Johnson  v.  State,  2  Dutcher,  324  ;  Cook  y.  State,  4 
Zab.  845. 

The  first  count,  therefore,  charging  the  defendant  as  a  principal  in 
the  larceny,  is  not  sustained  by  the  evidence.  The  crime  of  the  acces- 
sory, being  dissimilar  from  that  of  tiie  principal  in  its  fundamental 
characteristics,  must  be  distinctly  charged  in  the  pleadings.  It  has 
never  been  supposed  that  a  count  containing  a  statement  of  facts 
evincive  of  the  fault  of  the  party  accused  as  a  principal  in  a  felony, 
was  sufiicieut  to  warrant  the  conviction  of  such  party  as  an  accessory. 
1  Chit.  Crim.  Law,  271,  2  id.  4  ;  AVharton's  Prec.  of  Indict.  97  ;  State 
V.  Seran,  4  Dutcher,  519.  In  the  case  of  Rex  v.  Plant,  7  C.  &  P.  575, 
it  was  expressly  held  that  one  indicted  as  principal  in  a  felony  could 
not  be  convicted  of  being  an  accessory  before  the  fact.  See  also 
Whart.  C.  L.  115. 

Neither  will  the  second  count  of  the  indictment  sustain  the  convic- 
tion. The  evidence  shows  that  the  stolen  goods  were  received  by  the 
defendant,  with  guilty  knowledge,  in  the  state  of  New  York.  But 
this  was  no  offence  against  the  laws  of  this  State.  The  defendant 
therefore  cannot  be  legally  sentenced  upon  the  conviction  founded  on 
the  present  indictment. 

The  remaining  question  is,  has  the  defendant  committed  any  offence 
indictable  by  the  laws  of  this  State? 

His  act  was  to  incite  and  procure  his  agent  or  accomplice  to  enter 
this  state  and  commit  the  felony.  If  the  defendant  had  been  in  this 
state  at  the  time  of  such  procurement  and  incitement,  he  would  have 
been  guilty  as  an  accessory  before  the  fact ;  but  what  he  did  was  done 
out  of  the  state.  Did  he  thereby  become  amenable  to  our  criminal 
jurisdiction? 

As  the  defendant  did  not  act  within  this  state  in  his  own  person,  the 
point  to  be  decided  is,  did  he  do  such  act  in  this  state  by  construction 
or  in  contemplation  of  law? 

It  is  undoubtedly  true  that  personal  presence  within  the  jurisdictioa 
in  which  the  crime  is  committed,  is  not  in  all  cases  requisite  to  confer 
cognizance  over  the  person  of  the  offender,  in  the  tribunals  of  the  gov- 
ernment whose  laws  are  violated.  In  some  cases  the  maxim  applies, 
Crimen  trahit  j^ersonam.  Thus,  where  a  person  being  within  one 
jurisdiction,  maliciously  fires  a  shot  which  kills  a  man  in  another  juris- 
diction, it  is  murder  in  the  latter  jurisdiction,  the  illegal  act  being  there 
consummated.    So,  in  the  case  of  The  United  States  v.  Davis,  4  Sumner, 


SECT.  VI.]  STATE   V.   WYCKOFF.  159 

485,  the  defendant  was  accused  of  shooting  from  an  American  ship 
and  killing  a  man  on  board  a  foreign  schooner.  Chief  Justice  Story 
said:  "The  act  was,  in  contemplation  of  law,  done  where  the  shot 
took  effect.  He  would  be  liable  to  be  punished  by  the  foreigu  govern- 
ment." The  same  principle  was  recognized  by  this  court  in  the  case 
of  The  State  v.  Carter,  3  Dutcher,  499.  So,  when  a  crim«  is  com- 
mitted by  an  innocent  living  agent,  the  projector  of  such  crime  benig 
absent  from  the  country  whose  laws  are  infringed.  Such  was  the  case 
of  The  People  v.  Adams,  3  Denio,  190.  In  this  latter  case  the  facts 
were  these  :  The  defendant  was  indicted  in  the  city  of  New  York  for 
obtaining  money  from  a  firm  of  commission  merchants  in  that  city  by 
the  exhibition  of  fictitious  receipts.  The  defendant  pleaded  that  he 
had  never  been  in  the  State  of  New  York;  that  the  receipts  were 
drawn  and  signed  in  Ohio,  and  that  the  offence  was  committed  by 
their  being  presented  to  the  firm  in  New  Y^ork  by  innocent  agents  em- 
ployed by  the  defendant  in  Ohio.  It  was  held  that  such  plea  was  bad 
and  disclosed  no  defence.  A  number  of  authorities  maintaining  the 
same  view  will  be  found  collected  in  the  opinion  of  the  judge  who 
delivered  the  decision  of  the  court  in  the  case  last  cited. 

The  rule,  therefore,  appears  to  be  firmly  established,  and  upon  very 
satisfactory  grounds,  that  where  the  crime  is  committed  by  a  person 
absent  from  the  country  in  which  the  act  is  done,  through  the  means 
of  a  merely  material  agency  or  by  a  sentient  agent  who  is  innocent,  in 
such  cases  the  offender  is  punishable  where  the  act  is  done.  The  law 
implies  a  constructive  presence  from  the  necessity  of  the  case  •, 
otherwise  the  anomaly  would  exist  of  a  crime,  but  no  responsible 
criminal. 

But  the  more  difficult  question  remains  to  be  considered,  which  is, 
—  in  case  of  a  felony  committed  here  by  a  responsible  agent,  who  is 
therefore  the  principal  felon,  and  punishable  by  our  laws,  —  can  the 
procurer,  who  is  an  accessory  before  the  fact,  and  whose  acts  of  pro- 
curement have  been  done  in  a  foreign  jurisdiction,  be  indicted  and 
punished  for  such  procurement  in  this    state  ? 

The  general  rule  of  the  law  has  always  been  that  a  crime  is  to  be  tried 
in  the  place  in  which  the  criminal  act  has  been  committed.  It  is  not 
sufficient  that  part  of  such  act  shall  have  been  clone  in  such  place,  but 
it  is  the  completed  act  alone  whicli  gives  jurisdiction.  So  far  has  this 
strictness  been  pushed  that  it  has  been  uniformly  held  that  if  a  felony 
was  committed  in  one  county,  the  accessory  having  incited  the  prin- 
cipal in  another  county,  such  accessory  could  not  be  indicted  in  either. 
This  technicality,  which,  when  applied  to  the  several  counties  of  the 
same  kingdom  or  state,  appears  to  have  little  to  recommend  it,  was 
nevertheless  so  firmly  established  that  it  required  the  statute  of  2  and 
3  Ed.  VI.  c.  24,^  to  abolish  it,  and  this  statute  has  been  re-enacted  in 

1  "  Where  any  murder  or  felony  hereafter  shall  be  committed  and  done  in  one 
county,  and  another  person  or  mo  shall  be  accessory  or  accessories  in  any  manner  of 
wise  to  any  such  murder  or  felony  in  any  other  county,  that  then  an  indictment  fouod 


160  STATE    V.    WYCKOFF.  [CHAP.  II, 

this  state.  Nix.  Dig.  199  (Rev.  p.  282,  5  78).  And  so  in  like  manner 
the  same  rigor  existed  in  cases  in  which  death  ensued  out  of  the  king 
dom  from  a  felonious  stroke  inflicted  within  it,  it  being  decided  that 
neither  the  principal  nor  accessory  was,  under  such  circumstances,  in- 
dictable. This  imperfection  iu  the  criminal  system  was  removed  by 
the  statute  of  2  Geo.  II.  c.  21,  and  which  has  been  substantially  copied 
iu  the  third  section  of  the  act  of  this  State  before  referred  to  iu  Nix. 
Dig.  200  (Rev.  p.  282,  §  78).  For  the  rules  of  law  which  were  thus 
modified  by  statute,  see  3  lust.  48  ;  Lacye's  Case,  1  Leo.  270  :  2  Rep.  93. 

If,  then,  the  accessory  by  the  common  law  was  answerable  only  in 
the  county  in  which  he  enticed  the  principal,  and  that,  too,  when  the 
criminal  act  was  consummated  iu  the  same  county,  it  would  seem  to 
follow  necessarily,  in  the  absence  of  all  statutory  provision,  that  he  is 
wholly  dispunishable  when  the  enticement  to  the  commission  of  the 
offence  has  taken  place  out  of  the  state  in  which  the  felony  has  been 
perpetrated.  Under  such  a  condition  of  affairs  it  is  not  easy  to  see 
how  the  accessory  has  brought  himself  within  the  reach  of  the  laws  of 
the  oflended  state.  His  offence  consists  in  the  enticement  to  commit 
the  crime  ;  and  that  enticement,  and  all  parts  of  it,  took  place  in  a 
foreign  jurisdiction.  As  the  instrumentality  employed  was  a  conscious 
guilty  agent,  with  free  will  to  act  or  to  refrain  from  acting,  there  is  no 
room  for  the  doctrine  of  a  constructive  presence  in  the  procurer.  Ap- 
plying to  the  facts  of  this  case  the  general  and  recognized  principles 
of  law,  it  would  seem  to  be  clear  that  the  offence  of  which  the  defend- 
ant has  been  guilty  is  not  such  as  the  laws  of  this  state  can  take  cog- 
nizance of.  We  must  be  satisfied  to  redress  the  wrong  which  has  been 
done  to  one  of  our  citizens,  and  to  vindicate  the  dignity  of  our  laws 
by  the  punishment  of  the  wrong-doer  who  came  within  our  territorial 
limits.  As  for  the  defendant,  who  has  never  been,  either  in  fact  or  by 
legal  intendment,  within  our  jurisdiction,  he  can  be  only  punished  by 
the  authority  of  the  State  of  New  York,  to  w^hose  sovereignty  alone  he 
was  subject  at  the  time  he  perpetrated  the  crime  in  question. 

The  principal  involved  in  this  case  has  not  often  been  the  subject  of 
judicial  consideration,  nor  has  it  received  much  attention  from  the  text- 
writers.  But  in  the  few  cases  to  be  found  in  the  reports  upon  the 
point  a  view  similar  to  the  above  has  been  expressed.  The  case  of  The 
State  V.  Moore,  6  Foster,  448,  was,  in  all  its  features,  identical  with 
that  now  before  this  court,  and  the  result  was  a  discharge  of  the  pris- 
oner, on  the  ground  that  the  crime  of  the  accessory  had  not  been 
committed  within  the  jurisdiction  of  New  Hampshire. 

The  case  Mx  parte  Smith,  6  Law  Reporter,  57,  was  to  the  same 

or  taken  against  such  accessory  and  accessories  upon  the  circumstance  of  such  matter 
before  the  justices  of  the  peace,  or  other  justices  or  commissioners  to  enquire  of  felonies 
iu  the  county  where  such  ofTences  of  accessory  or  accessories  in  any  manner  of  wise  shall 
be  committed  or  done,  shall  be  as  good  and  effectual  in  the  law  as  if  the  said  principal 
ofTence  had  been  committed  or  doue  within  the  same  county  where  the  same  indictment 
against  such  accessory  shall  be  found."     2  &  3  Ed.  6,  c.  24,  §  4.  —  Ed. 


SECT.  VI.]  STATE    V.    WYCKOFF.  161 

effect.  The  same  principle  was  again  considered,  though  in  a  some- 
what different  aspect,  in  the  case  of  The  State  r.  Knight,  1  Taylor's 
Rep.  (N.  C.)  65,  and  the  opinion  intimated  by  the  court  entirely  ac- 
corded with  those  expressed  in  the  two  cases  first  above  cited.  These 
are  the  only  judicial  examinations  of  the  matter  now  in  hand  which  I 
have  met  with  in  the  course  of  my  research. 

Upon  authority,  then,  as  well  as  upon  principle,  I  think  the  present 
indictment  cannot  be  sustained,  and  that  the  defendant  has  not  com- 
mitted any  offence  which  is  indictable  by  force  of  the  laws  of  this 
State. 

Let  the  Court  of  Oyer  and  Terminer  be  advised  accordingly.^ 


Penal  Code  of  New  York,  §  32.  An  accessory  to  a  felony  may 
be  indicted,  tried,  and  convicted,  either  in  the  county  where  he  be- 
came an  accessory,  or  in  the  county  where  tlie  principal  felony  was 
committed. 


Mass.  R.  L.  eh.  215,  §  43.  [An  accessory  before  the  fact]  may  be 
indicted,  tried,  and  punished  in  the  same  county  in  which  the  princi- 
pal felon  might  be  indicted  and  tried,  although  the  counselUng,  hiring, 
or  procuring  the  commission  of  such  felony  was  committed,  within  or 
without  this  commonwealth,  or  on  the  high  seas.^ 

1  Ace.  State  v.  Chapiii,  17  Ark.  561 ;  State  v.  Moore,  26  N.  H.  448.  But  see  Stat© 
i;.  Grady,  34  Conn.  118  ;  State  o.  Ayres,  8  Baxter,  96.  —  Ed. 

2  See  Com.  v.  Fettes,  114  Mass.  307.  — Ed. 


162  LINDSEY   V.   STATE.  [(JHAP.  II. 


LINDSEY  V.  STATE. 
Supreme  Court  of  Ohio.     1882. 

\Reportecl  38  Ohio  State,  507.] 

The  plaintiff  in  error,  and  one  John  T.  Morris,  were  jointly  indicted 
in  Jefferson  County.  The  charge  is  that  they  did  unlawfully  and 
feloniously  utter  and  publish  in  said  county,  as  true  and  genuine,  a 
certain  false,  forged,  and  counterfeit  deed  of  real  estate,  purporting  to 
be  executed  and  acknowledged  by  Maurice  F.  Thornton  and  wife,  be- 
fore Herman  E.  Shuster,  a  notary  public  of  the  State  of  Missouri,  and 
to  convey  certain  lands  in  that  State  to  James  Turnbull,  of  Jefferson 
County,  Ohio. 

The  plaintiff  in  error  had  a  separate  trial,  and  was  convicted  and 
sentenced. 

The  evidence  tended  to  show  that  the  deed  was  a  forgery,  executed 
in  St.  Louis  by  the  notary  public  by  the  procurement  of  Lindsey,  who 
then  and  thereafter,  until  forcibly  brought  to  Ohio,  was  never  in  this 
State  ,  that  this  deed  was  delivered  by  Lindsey  or  his  agent  to  his  co- 
defendant  Morris  (who  is  awaiting  his  trial),  and  by  him  was  sent  by 
mail  to  T.  &  D.  Hall,  real  estate  agents  in  Steubenville,  through  whom  it 
was  uttered  and  published  by  a  sale  of  the  land  to  Turnbull.  T.  &  D. 
Hall  were  the  innocent  agents  in  the  transaction,  and  received  and 
accounted  for  the  purchase-money,  less  commissions.^ 

Johnson,  J.  Two  questions  are  presented  on  the  foregoing  state- 
ment;  — 

First.    Had  the  court  jui'isdiction  over  the  plaintiff  in  error?  and. 

Second.  Were  the  conveyances  of  other  lands  admissible  for  the 
purpose  of  showing  guilty  knowledge?'^ 

First.  As  to  the  jurisdiction  of  the  court;  Is  the  crime  charged  an 
extra-territorial  crime?  Was  it  committed  by  the  accused  in  Missouri, 
or  in  Ohio? 

If  he  were  indicted  for  the  forgery  of  this  deed,  he  could  not  be 
punished  in  Ohio,  as  it  is  conceded  that  all  his  acts  that  constitute 
that  crime  were  committed  in  Missouri.  When  he  procured  the  notary 
in  St.  Louis  to  forge  the  signatures,  and  the  acknowledgment  of  the 
grantors,  with  the  criminal  intent,  the  crime  of  forgery  was  consum- 
mated in  the  State  of  Missouri.  But  this  is  not  the  charge  in  the  case 
at  bar.  It  is  for  knowingly  uttering  and  publishing  as  true  and  genu- 
ine a  false  and  forged  deed.  It  is  wholly  immaterial  where  the  forgery 
was  committed. 

1  Part  of  the  evidence  and  the  arguments  of  counsel  are  omitted. 

'  That  portion  of  the  opinion  which  relates  to  the  second  question  is  omitted. 


SECT.  VI.]  LINDSEY  V.   STATE.  163 

The  question  therefore  is,  was  this  deed  uttered  and  published  in 
Jefferson  County,  Ohio,  and  was  Lindsey  guilty  of  this  crime? 

That  this  forged  deed  was  uttered  and  published  in  Ohio  by  T.  &  D. 
Hall,  who  supposed  it  was  genuine,  is  clear  from  the  evidence. 

Now,  it  is  assumed  that  the  jury  had  evidence  to  warrant  them  in 
finding  that  T.  &  D.  Hall  did  so  utter  and  publish  this  deed  by  the 
procurement  of   Lindsey. 

The  crime  was  therefore  completed  or  consummated  in  Ohio,  through 
the  instrumentality  of  an  innocent  agent.  It  is  wholly  immaterial 
whether  his  co-defendant  Morris  was  his  confederate  or  his  dupe,  as  in 
either  case  the  acts  of  Morris  by  correspondence  mailed  in  St.  Louis 
to  T.  &  D.  Hall  were  simply  the  means  used  to  consummate  a  crime 
in  Ohio.  The  crime  had  its  inception  in  Missouri,  but  it  was  com- 
mitted in  Ohio  i)y  innocent  agents.  If  a  letter  containing  a  forged 
instrument  is  mailed  at  one  place  to  be  sent  to  another,  the  venue  must 
be  laid  where  the  letter  is  received.     3  Greenl.  §  112. 

The  crime  of  uttering  and  publishing  is  not  complete  until  the  paper 
comes  to  the  hands  of  some  one  other  than  the  accused,  and  if  it  be 
sent  by  mail  for  the  purpose  of  being  there  used,  the  crhne  is  not 
consummated  until  it  is  received  by  the  person  to  whom  it  is  to  be 
delivered.  It  is  a  fundamental  principle  that  a  person  is  responsible 
criminally  for  acts  committed  by  his  procurement  as  well  as  for  those 
done  in  person.  The  inherent  power  of  the  state  to  punish  the  utter- 
ing and  publication  of  forged  instruments  within  its  territorial  limits, 
without  regard  to  the  place  where  the  forgery  was  committed,  or  pur- 
pose was  formed,  is  essential  to  the  protection  of  her  people.  It  is 
now  a  generally  accepted  principle  that  one  who  in  one  county  or  state 
employs  an  innocent  agent  in  another  to  commit  a  crime,  is  liable  in 
the  latter  county  or  state.  Robbius  v.  The  State,  8  Ohio  St.  131  ; 
Norris  w.  The  State,  25  Ohio  St.  217;  1  Whart,  Grim.  Law  (7th  ed.), 
§§  210,  278;  see  also  Commonwealth  o.  Macloon,  101  Mass.  1  ;  Com- 
monwealth V  Smith,  11  Allen  (Mass.),  243  ;  Commonwealth  w.  Bland- 
ing,  3  Pick.  304  ;  Rex  v.  Johnson,  7  PLast,  65  ;  Wh.  Con.  of  L,  §§  877- 
921;  People  v.  Adams,  3  Denio,  190,  affirmed  1  N.  Y.  173;  United 
States  V.  Uavis,  2  Sumn.  482  :  State  v.  Wyckoff,  2  Vroom  (N.  J.)  68  ; 
Commonwealth  v.  Gillespie,  7  Serg,  &  R.  469  ;  Stillman  v.  White  Rock 
Co.,  3  Woodb.  &  M.  538  ;  Rex  v.  Garrett,  6  Cox  C.  C.  260  ;  Rex  v. 
Jones,  4  Cox  C.  C.  198;  State  v.  Grady,  34  Com.  118.^ 

>   Ace.  Reg.  V.  Taylor,  4  F.  &  F.  511  ;    People  v.  Adams,  3  Den.  190;  1  N,  Y.  17a 
See  Reg.  v.  Finkelstein,  16  Cox  C.  C.  107.  —  Ed. 


164  STATE    V.    CARTER.  1_CHAP.  11. 


STATE   V.  CARTER. 
Supreme  Court  of  New  Jersey      1859. 

[Repurttd  3  Dutcher,  499.] 

Vredenburgh,  J.  The  indictment  charges  that  the  defendant,  on 
the  29th  of  December,  1858,  in  the  city  of  New  York,  gave  one  Brush- 
Ingham  several  mortal  bruises,  of  which,  until  the  31st  of  December, 
1858,  as  well  in  New  York  as  in  Hudson  County,  in  this  state,  he  lan- 
guished, and  of  which,  in  said  Hudson  County,  he  then  died.  To  this 
indictment  the  defendant  pleaded  that  the  court  had  not  jurisdiction 
of  the  cause.  The  defendant,  we  must  assume,  was  a  citizen  of  the 
State  of  New  York.  Nothing  was  done  by  the  defendant  in  this  state. 
When  the  blow  was  given,  both  parties  were  out  of  its  jurisdiction,  and 
within  the  jurisdiction  of  the  State  of  New  York.  The  only  fact  con- 
nected with  the  offence  alleged  to  have  taken  place  within  our  juris- 
diction is,  that  after  the  injury,  the  deceased  came  into,  and  died  in 
this  state.  This  is  nof  the  case  where  a  man  stands  on  the  New  York 
side  of  the  line,  and  shooting  across  the  border,  kills  one  in  New  Jer- 
sey. When  that  is  so,  the  blow  is  in  fact  struck  in  New  Jersey.  It  is 
the  defendant's  act  in  this  state.  The  passage  of  the  ball,  after  it 
crosses  the  boundary,  and  its  actual  striking,  is  the  continuous  act  of 
the  defendant.  In  all  cases  the  criminal  act  is  the  impinging  of  the 
weapon,  whatever  it  may  be,  on  the  person  of  the  party  injured,  and 
that  must  necessarily  be  where  the  impingement  happens.  And  whether 
the  sword,  the  ball,  or  any  other  missile,  passes  over  a  boundary  in  the 
act  of  striking,  is  a  matter  of  no  consequence.  The  act  is  where  it 
strikes,  as  much  where  the  party  who  strikes  stands  out  of  the  state, 
as  where  he  stands  in  it. 

Here  no  act  is  done  in  this  state  by  the  defendant.  He  sent  no  mis- 
sile, or  letter,  or  message,  that  operated  as  an  act  within  this  state. 
The  coming  of  the  party  injured  into  this  state  afterwards  was  his  own 
voluntary  act,  and  in  no  way  the  act  of  the  defendant.  If  the  defend- 
ant is  liable  here  at  all,  it  must  be  solely  because  the  deceased  came 
and  died  here  after  he  was  injured.  Can  th.at,  in  the  nature  of  things, 
make  the  defendant  guilty  of  murder  or  manslaughter  here?  If  it  can, 
then  for  a  year  after  an  injury  is  inflicted,  murder,  as  to  its  jurisdic- 
tion, is  ambulatory  at  the  option  of  the  party  injured,  and  becomes 
punishable  as  such  wherever  he  may  see  fit  to  die.  It  may  be  man- 
slaughter, in  its  various  degrees,  in  one  place,  murder,  in  its  various 
degrees,  in  another.  Its  punishment  may  be  fine  in  one  country,  im- 
prisonment, whipping,  beheading,  strangling,  quartering,  hanging,  or 
torture  in  another,  and  all  for  no  act  done  by  the  defendant  in  any  of 
these  jurisdictions,  but  only  because  the  party  injured  found  it  con- 
venient to  travel. 


SECT.  VI.]  STATE   V.   CARTER.  165 

This  is  not  like  the  case  of  stolen  goods,  carried  from  one  state  to 
another,  or  of  leaving  the  state  for  any  purpose  wliatever,  like  that 
for  fighting  a  duel,  or  of  sending  a  letter  or  messenger,  or  message, 
for  any  purpose,  into  another  state  ;  for  in  all  these  cases  the  cogni- 
zance is  taken  for  an  act  done  within  the  jurisdiction. 

If  the  acts  charged  in  this  indictment  be  criminal  in  New  Jersey,  it 
must  be  either  by  force  of  some  statute  or  upon  general  principles. 
There  is  no  statute,  unless  it  be  the  act  to  be  found  in  Nix.  Dig.  184, 
s.  3.  But  this  evidently  relates  to  murder  only,  and  not  to  man- 
slaughter. 

But  I  cannot  make  myself  believe  that  the  legislature,  in  that  act, 
intended  to  embrace  cases  where  the  injury  was  inflicted  within  a  for- 
eign jurisdiction  without  any  act  done  by  the  defendant  witliin  our 
own.  Such  an  enactment,  upon  general  principles,  would  necessarily 
be  void;  it  would  give  the  courts  of  this  state  jurisdiction  over  all  tU? 
subjects  of  all  the  governments  of  the  earth,  with  power  to  try  and 
punish  them,  if  they  could  by  force  or  fraud  get  possession  of  their 
persons  in  all  cases  where  personal  injuries  are  followed  by  death. 

An  act,  to  be  criminal,  must  be  alleged  to  be  an  offence  against  the 
-  sovereignty  of  the  government.  This  is  of  the  very  essence  of  crime 
punishable  by  human  law.  How  can  an  act  done  in  one  jurisdiction 
be  an  offence  against  the  sovereignty  of  another  ?  All  the  cases  turn 
upon  the  question  where  the  act  was  done.  The  person  who  does  it 
may,  when  he  does  it,  be  withm  or  without  the  jurisdiction,  as  by 
shooting  or  sending  a  letter  across  the  border ;  but  the  act  is  not  the 
less  done  within  the  jurisdiction  because  the  person  who  does  it  stands 
without.  This  case  is  not  at  all  like  those  where  the  defendant  is  tried 
in  England  for  a  crime  committed  in  one  of  the  dependencies  of  the 
British  empire.  There  the  act  is  done,  and  the  crime  is  in  fact  com- 
mitted against  the  sovereignty  of  the  British  crown,  and  only  the  place 
of  trial  is  clianged. 

If  our  government  takes  jurisdiction  of  this  case,  it  must  be  not  by 
virtue  of  any  statute,  but  because  it  assumes  general  power  to  punish 
acts  mala  in  se  wherever  perpetrated  in  the  world.  The  fact  of  the 
party  injured  can  give  no  additional  jurisdiction. 

Such  crimes  may  be  committed  on  the  high  seas,  in  lands  where 
there  are,  or  where  there  are  not  regular  governments  established. 
When  done  upon  the  high  seas,  they  may  be  either  upon  our  vessels 
or  upon  vessels  belonging  to  other  governments.  When  done  upon 
our  vessels,  in  whatever  solitary  corner  of  the  ocean,  from  the  necess- 
ity of  the  case,  and  by  universal  acceptance,  the  vessel  and  all  it  con- 
tains is  still  within  our  jurisdiction,  and  when  the  vessel  comes  to  port 
the  criminal  is  still  tried  for  an  act  clo?ie  within  our  jurisdiction.  But 
we  have  never  treated  acts  done  upon  the  vessels  of  other  governments 
as  within  our  jurisdiction,  nor  has  such  ever  been  done  by  any  civilized 
government. 

When  an  act  malum  in  se  is  done  in  solitudes,  upon  land  where  there 


166  COMMONWEALTH    V.    MACLOON.  [CHAP.  II. 

lias  not  yet  been  formerly  extended  any  supreme  human  power,  it  may 
be  that  any  reguhir  government  may  feel,  as  it  were,  a  divuie  commis- 
sion to  try  and  punish.  It  may,  as  in  cases  of  crime  committed  in  the 
solitudes  of  the  ocean,  upon  and  by  vessels  belonging  to  no  govern- 
ment, pro  hac  vice  arrogate  to  itself  the  prerogative  of  omnipotence, 
and  hang  the  pirate  of  the  land  as  well  as  of  the  water.  P'urther  than 
this  it  could  not  have  been  intended  that  our  statute  should  apply. 
But  here  the  act  was  done  in  the  State  of  New  York,  a  regularly  organ- 
ized and  acknowledged  supreme  government.  The  act  was  a  crime 
against  their  sovereignty.  That  was  supreme  within  its  territorial 
limits  and  in  its  very  nature,  and  in  fact  is  exclusive.  There  cannot 
be  two  sovereignties  supreme  over  the  same  place  at  the  same  time 
over  the  same  subject-matter.  The  existence  of  theirs  is  exclusive  of 
ours.  We  may  exercise  acts  of  sovereignty  over  the  wastes  of  ocean 
or  of  land,  but  we  must  necessarily  stop  at  the  boundary  of  another. 
The  allegation  of  an  act  done  in  another  sovereignty,  to  be  a  violation 
of  our  own,  is  simply  alleging  an  impossibility,  and  all  laws  to  punish 
such  acts  are  necessarily  void. 

It  is  said  that  if  we  do  not  take  jurisdiction,  the  defendant  will  go 
unpunished,  inasmuch  as,  the  party  injured  not  dying  in  New  York,  he 
could  not  be  guilty  of  murder  there.  But  New  York  may  provide  by 
law  for  such  cases,  and  if  she  does  not,  it  is  their  fault,  and  not  ours. 
The  act  done  is  against  their  sovereignty,  and  if  she  does  not  choose 
to  avenge  it,  it  is  not  for  us  to  step  in  and  do  it  for  them. 

I  think  that  the  Oyer  and  Terminer  should  be  advised  that  no  crime 
against  this  state  is  charged  in  the  indictment.'' 


COMMONWEALTH  v.  MACLOON. 

Supreme  Judicial  Court  of  Massachusetts.     1869. 

[Reportf'd  101  Massachusetts,  I.| 

Gray,  J.^  The  defendants,  the  one  a  citizen  of  Maine,  and  tht 
other  a  British  subject,  have  been  convicted  in  the  Superior  Court  in 
Suffolk  of  manslaughter  of  a  man  who  died  within  the  county  in 
consequence  of  injuries  inflicted  by  them  upon  him  in  a  British  mer- 
chant ship  on  the  high  seas. 

The  principal  question  in  the  case  is  that  of  jurisdiction,  which 
touches  the  sovereign  power  of  the  Commonwealth  to  bring  to  justice 
the  murderers  of  those  who  die  within  its  borders.  This  question  has 
been  ably  and  thoroughly  argued,  and  has  received  the  consideration 
which  its  importance  demands. 

1  Ace.  State  v.  Kelly,  76  Me.  331.  —  Ed. 

2  Part  of  the  opinion  only  is  <jiven. 


SECT.  VI.]  COMMONWEALTH    V.    MACLOON.  167 

The  statute  on  wtiich  the  defendants  were  indicted,  after  prescribing 
the  punishment  for  murder  and  manslaughter,  provides  that  ^'  if  a  mor- 
tal wound  is  given,  or  other  violence  or  injury  inflicted,  or  poison  is 
administered,  on  the  high  seas,  or  on  land,  either  within  or  without  the 
limits  of  this  state,  by  means  whereof  death  ensues  in  any  county 
thereof,  such  offence  may  be  prosecuted  and  punished  in  the  county 
where  the  death  happens."     Gen.  Sts.  c.  171,  §  19. 

This  statute  is  founded  upon  the  general  power  of  the  legislature, 
except  so  far  as  restrained  by  the  constitutions  of  the  Commonwealth 
and  of  the  United  States,  to  declare  any  wilful  or  negligent  act  which 
causes  an  injury  to  person  or  property  within  its  territory  to  be  a 
crime,  and  to  provide  for  the  punishment  of  the  offender  upon  being 
apprehended  within  its  jurisdiction. 

Whenever  any  act,  which,  if  committed  wholly  within  one  jurisdiction 
would  be  criminal,  is  committed  partly  in  and  partly  out  of  that  juris- 
diction, the  question  is  whether  so  much  of  the  act  as  operates  in  the 
county  or  state  in  which  the  offender  is  indicted  and  tried  has  been  de- 
clared to  be  punishable  by  the  law  of  that  jurisdiction. 

A  good  illustration  of  this  is  afforded  by  the  cases  of  bringing  stolen 
goods  from  one  jurisdiction  to  another.  It  has  been  held  from  the 
earliest  times  that  if  a  thief  steals  goods  in  one  county,  and  brings 
them  into  another,  he  may  be  indicted  in  either  county,  because  his 
unlawful  carrying  in  the  second  is  deemed  a  continuance  of  the  unlaw- 
ful taking,  and  so  all  the  essential  elements  of  larceny  exist  in  the 
second  ;  but  if  he  takes  the  goods  by  force,  although  this  is  robbery  in 
the  county  in  which  he  first  takes  them,  it  is  but  larceny  in  any  county 
into  whicii  he  afterwards  cariies  them,  because  no  violence  to  the  per- 
son has  been  used  in  the  latter.  1  Hale  P.  C.  507,  508,  536  ;  2  Hale 
P.  C.  163  ;  4  Bl.  Com.  305.  If  he  steals  goods  on  the  high  seas  or  in 
a  foreign  country,  and  brings  them  into  this  state,  it  is  not  a  common 
law  larceny,  because  there  has  been  no  taking  against  the  law  which  is 
invoked  to  punish  him.  Butler's  Case,  13  Co.  53;  s.  c.  3  Inst.  113: 
Commonwealth  r.  Uprichard,  3  Gray,  434.  Yet  if  the  legislature  see 
fit  to  provide  that  the  bringing  into  the  state  of  goods  taken  without 
right  from  the  owner  in  a  foreign  countrj',  shall  be  punished  here  as 
larceny,  it  is  within  their  constitutional  authority  to  do  so.  People  v. 
Burke,  11  \Yend.  129  ;  State  v.  Seay,  3  Stew.  123  :  Hemmaker  v.  State, 
12  INIissouri,  453.  By  a  series  of  decisions,  beginning  while  the  states 
of  this  Union  were  colonies  of  Great  Britain,  it  iuis  been  held  that  a 
bringing  into  Massachusetts  of  goods  stolen  in  another  colony  or  state 
subject  to  the  same  national  sovereignty  might  be  indicted  here  as  a 
larceny  at  common  law.  Commonwealth  v.  Andrews,  2  Mass.  14,  and 
cases  cited  ;  Commonvvealth  r.  Holder,  9  Gray,  7.  And  in  other  states, 
in  which  the  common  law  has  been  held  not  to  reach  such  a  case,  a 
statute  declaring  such  bringing  to  be  larceny  in  the  state  into  which  the 
goods  are  brought  has  been  acknowledged  to  be  valid  and  binding  upon 
the  courts.  Simmons  v.  Commonwealth,  5  Binn.  619;  Simpson  v 
State.  4  Humph.  461  :   Beal  v.  State,  15  Ind.  378. 


1G8  COMMONWEALTH    V.    MACLOON.  [CHAP.  II. 

The  general  principle,  that  a  man  who  docs  a  criminal  act  in  one 
county  or  state  may  be  held  liable  for  its  continuous  operation  in 
another,  has  been  affirmed  in  various  other  cases.  Thus  a  man  who 
erects  a  nuisance  in  a  river  or  stream  in  one  county  or  state  is  liable, 
criminally  as  well  as  civilly,  in  any  county  or  state  in  which  it  injures 
the  land  of  another.  Bulwer's  Case,  7  Co.  2  b,  3  b  ;  2  Hawk.  c.  25, 
§  37  ;  Com.  Dig.  Action,  N.  3,  11  ;  Abbott,  C.  J.,  in  The  King  v.  Bur- 
dett,  4  B.  &  Aid.  175,  176  ;  Thompson  v.  Crocker,  9  Pick.  59  ;  Stillman 
V.  White  Rock  Manufacturing  Co.  3  Woodb.  &  Min.  538.  And  one 
who  publishes  a  libel  in  another  state,  in  a  newspaper  which  circulates 
in  this  commonwealth  also,  is  liable  to  indictment  here.  Common- 
wealth V.  Blanding,  3  Pick.  304.  There  is  no  more  reason  against 
holding  the  wrong-doer  criminall}'  liable  in  the  county  and  state  where 
his  victim  dies  fx'om  the  continuous  operation  of  his  mortal  blow,  than 
in  those  to  which  the  flowing  water  carries  the  injurious  effect  of  his 
nuisance  to  property,  or  the  circulation  of  his  libel  extends  the  injury 
to  reputation. 

Criminal  homicide  consists  in  the  unlawful  taking  by  one  human 
being  of  the  life  of  another  in  such  a  manner  that  he  dies  within  a  year 
and  a  day  from  the  time  of  the  giving  of  the  mortal  wound.  If  com- 
mitted with  malice,  express  or  implied  by  law,  it  is  murder;  if  without 
maUce,  it  is  manslaughter.  No  personal  injury,  however  grave,  which 
does  not  destroy  life,  will  constitute  either  of  these  crimes.  The  injury 
must  continue  to  affect  the  body  of  the  victim  until  his  death.  If  it 
ceases  to  operate,  and  death  ensues  from  another  cause,  no  murder  or 
manslaughter  has  been  committed.  But  if  the  bullet  remains  in  the 
body  so  as  to  press  upon  or  disturb  the  vital  organs  and  ultimately  pro- 
duce death,  or  the  wound  or  the  poison  causes  a  gradual  decline  of 
health,  ending  in  death,  the  injury  and  death  are  as  much  the  continu- 
ous operation  and  effect  of  the  unlawful  act  as  if  the  shot,  the  stab,  or 
the  poison  proves  instantly  fatal.  The  unlawful  intent  with  which  the 
wound  is  made  or  the  poison  administered  attends  and  qualifies  the  act 
until  its  final  result.  No  repentance  or  change  of  purpose,  after  inflict- 
ing the  injury  or  setting  in  motion  the  force  by  means  of  which  it 
is  inflicted,  will  excuse  the  criminal.  If  his  unlawful  act  is  the 
efficient  cause  of  the  mortal  injury,  his  personal  presence  at  the  time  of 
its  beginning,  its  continuance,  or  its  result,  is  not  essential.  He  may 
be  held  guilty  of  homicide  by  shooting,  even  if  he  stands  afar  off,  out 
of  sight,  or  in  another  jurisdiction.  1  Hale  P.  C,  475  ;  People  v. 
Adams,  3  Denio,  207;  s.  c.  1  Comst.  176,  179.  If  he  knowingly  lets 
loose  a  dangerous  beast,  which  runs  any  distance  and  then  kills  a  man  ; 
or  incites  a  madman  or  a  child  not  of  years  of  discretion  to  commit 
murder  in  his  absence,  whereby  any  one  is  killed  ;  or,  with  intent  to 
murder,  leaves  poison  with  another  person  to  be  administered  to  a 
third,  and  the  poison  is  administered  by  the  same  or  another  innocent 
ao^ent,  and  causes  the  death  of  the  person  intended,  or  any  other ;  he  is 
responsible  as  principal,  to  the  same  extent  as  if  personally  present  at 


SECT.  VI.]  COMMONWEALTH    V     MACLOON.  169 

the  actual  killing.  1  Hale  P.  C  430,  431 ,  615,  G17  ;  Rcgina  v.  Michael, 
9  C.  &  P.  356  ;  s.  c.  2  Mood}',  120;  People  ?'.  Adams,  supra.  And  if 
he  wilfully  inflicts  a  wound  which  results  fatallj-,  he  is  not  excused  by 
the  fact  that  the  negligence  of  the  wounded  man  or  the  unskilful  treat- 
ment of  surgeons  hastens  or  contributes  to  the  death.  1  Hale  P.  C. 
428;  Commonwealth  v.  Hackett,  2  Allen,  136.  The  person  who  un- 
lawfull}'  sets  the  means  of  death  in  motion,  whether  through  an  irre- 
sponsible instrument  or  agent,  or  in  the  body  of  the  victim,  is  the 
guilty  cause  of  the  deatii  at  the  time  and  place  at  which  his  unlawful 
act  produces  its  fatal  result;  and,  according  to  the  great  weight  of 
authority,  may  be  then  and  there  tried  and  punished,  under  an  express 
statute,  if  not  by  the  common  law. 

The  crime  not  being  murder  or  manslaughter  before  the  death,  an 
indictment  alleging  the  stroke  at  one  day  and  place,  and  the  death  at 
another  day  and  place,  is  good  if  it  alleges  the  murder  or  manslaughter 
to  have  been  at  the  time  and  place  of  the  death,  but  bad  if  it  alleges 
that  the  defendant  killed  and  murdered  the  deceased  at  the  day  and 
place  at  which  the  stroke  w^as  given,  "  for,"  in  the  words  of  Lord  Coke, 
"  thougli  to  some  purpose  the  deatli  hath  relation  to  the  blow,  yet  this 
relation,  being  a  fiction  in  law,  maketh  not  the  felony  to  be  then  com- 
mitted." 2  Inst.  318  ;  1  Hale  P.  C.  427  ;  2  Hale  P.  C.  188.  So  the 
j-ear  and  day  "  after  the  deed,  —  apres  le  fait,"  within  which  b}-  the 
Statute  of  Gloucester  an  appeal  of  murder  must  be  brought,  was  held 
to  run  not  from  the  blow,  but  from  the  death,  "  for  before  that  tmie  no 
felony  was  committed."  2  Inst.  320;  1  Hale  P.  C.  427.  And  man- 
slaughter arising  out  of  a  blow  struck  in  one  count}-,  followed  by  death 
in  another,  was  held  by  Mr.  Justice  Littledale  to  be  a  felon}-  "•  begun  in 
one  county  and  completed  In  another,"  within  the  meaning  of  a  modern 
Enghsh  statute  authorizing  such  a  felony  to  be  indicted  in  either 
county.      Rex  v.  Jones,  1  Russell  on  Crimes  (3d  Eng.  ed.),  549,  550. 

Whenever  at  common  law  murder  escaped  punishment  at  the  place 
of  the  death,  it  was  not  from  a  want  of  authority  in  the  government, 
but  from  a  defect  in  the  laws  regulating  the  mode  of  prosecution  and 
trial. 

In  the  beginning  of  the  reign  of  Edward  III.,  according  to  Chief 
Justice  Scrope,  if  a  man  died  in  one  county  of  a  wound  received  in  an- 
other, the  murderer  might  be  indicted  and  arraigned  in  the  count}' 
where  the  death  happened,  "  and  yet  the  cause  of  his  death  began  in 
the  other  county."  Fitz.  Ab.  Corone,  373.  At  a  later  period,  it  was 
held  that  where  a  man  was  feloniously  stricken  or  poisoned  in  one 
county,  and  died  in  another  county,  no  indictment  could  be  found  in 
either  county,  because  both  the  stroke  and  the  death  were  necessary  to 
constitute  the  crime,  and  the  jurors  of  one  county  could  not  inquire  of 
that  which  was  done  in  another,  "  unless,"  as  Lord  Hale  says,  "  speci- 
ally enabled  by  act  of  parliament ;  "  and  for  this  reason  the  custom  at 
one  time  prevailed  of  taking  the  dead  body  into  the  county  where  the 
mortal  stroke  was  given,  and  havmg  an  indictment  found  and  tried 


170  COMMONWEALTH    V.    MACLOON.  .     [CHAP.  II. 

there  ;  and,  in  carrying  out  the  same  principle,  it  was  held  that  an 
appeal  of  murder,  which  required  no  indictment,  but  was  sued  out  by 
the  nearest  relation,  and  prosecuted  by  the  king  only  in  case  of  the  with- 
drawal of  the  appellant,  might  be  brought  in  the  county  of  the  death, 
although  the  mortal  stroke  was  given  in  another  county,  provided  there 
were  legal  means  of  summoning  a  jury  for  the  trial  out  of  both  counties, 
but  not  otherwise.  6  Hen.  VII.  10,  pi.  7  ;  3  Inst.  48,  49  ;  '2  Hale  P.  C. 
163  ;  1  Stark.  Crim.  PI.  3,  and  notes. 

The  St.  of  2  &  3  p]dvv.  VI.  c.  24,  begins  with  declaring,  "  Forasmuch 
as  the  most  necessary  office  and  duty  of  law  is  to  preserve  and  save 
the  life  of  man,  and  condignly  to  punish  such  persons  that  unlawfully 
and  wilfully  murder,  slay,  or  destroy  men,"  and,  after  reciting  the  de- 
fects in  the  previous  laws,  enacts,  '-for  redress  and  punishment  of 
which  offences  and  safeguard  of  man's  life,"  that  ''where  any  person 
or  persons  hereafter  shall  be  feloniously  stricken  or  poisoned  in  one 
county,  and  die  of  the  same  stroke  or  poisoning  in  another  county,  then 
an  indictment  thereof  founden  by  jurors  of  the  county  where  the  death 
shall  happen,  whether  it  shall  be  founden  before  the  coroner  upon  the 
sight  of  such  dead  body,  or  before  the  justices  of  peace  or  other  justices 
or  commissioners  which  shall  have  authority  to  inquire  of  such  offences, 
shall  be  as  good  and  effectual  in  tlie  law,  as  if  the  stroke  or  poisoning 
had  been  committed  and  done  in  the  same  county  where  the  party  shall 
die,  or  where  such  indictment  shall  be  so  founden  ;  any  law  or  usage  to 
the  contrary  notwithstanding."  That  statute,  passed  within  a  century 
before  the  settlement  of  Massachusetts,  and  manifestly  suitable  to  our 
condition,  would  seem  to  have  been  part  of  our  common  law.  Com- 
monwealth V.  Knowlton,  2  Mass.  534  ;  Report  of  the  Judges,  3  Binn. 
595,  620  ;  State  v.  Moore,  26  N.  H.  448. 

In  the  most  ancient  times  of  which  we  have  any  considerable  records, 
the  English  courts  of  common  law  took  jurisdiction  of  crimes  com- 
mitted at  sea,  both  by  English  subjects  and  b}'  foreigners.  Beufo  v. 
H(jltham,  25  Edw.  I.,  in  Selden's  Notes  to  Fortescue,  c.  32;  Case  of 
tlie  Norman  Master  and  English  Seamen,  40  Assis.  25  ;  s.  c.  Fitz.  Ab. 
Corone,  216  ;  13  Co.  53,  54  ;  2  Hale  P.  C.  12,  13,  ahd  notes,  and  cases 
cited.  But  after  the  admiralty  jurisdiction  had  been  settled  by  the  Sts. 
of  13  and  15  Ric.  II.,  if  a  mortal  stroke  was  given  on  the  high  sea,  and 
the  person  stricken  came  to  land  in  England  and  died  there,  then, 
according  to  the  rule  established  before  the  St.  of  Edw.  VI.  in  the  case 
of  two  counties,  the  courts  of  common  law  could  not  try  the  murderer, 
because  no  jury  could  inquire  of  the  stroke  at  sea,  and  the  admiral 
could  not  try  him,  for  want  of  authorit}'  to  inquire  of  the  death  on  land. 
3  Inst   48.  " 

Both  Lord  Coke  and  Lord  Hale,  however,  were  of  opinion  that  such  a 
murderer  could  not  wholly  escape  punishment,  although  tliey  differed 
as  to  the  mode  of  bringing  him  to  justice  Co.  Lit.  74  b  ;  3  Inst.  48  ; 
2  Hale  P.  C.  12-20. 

Neither  Lord  Coke  nor  Lord  Hale  suggests  any  doubt  of  the  rightful 


SECT.  VI.]  COMMONWEALTH   V.   MACLOON.  171 

power  of  the  legislature  to  pass  a  statute  to  punish  whoever  should 
cause  death  within  the  realm  by  an  injury  on  the  high  seas.  And  in 
1729  the  parliament  of  Great  Britain  passed  a  statute,  declared  to  be 
"  for  preventing  any  failure  of  justice  and  taking  away  all  doubts 
touching  the  trial  of  murders  in  the  cases  hereinafter  mentioned,"  by 
which  it  was  enacted  that,  where  any  person  should  be  feloniously  sti'icken 
or  poisoned  upon  the  sea  or  at  any  place  out  of  England,  and  should 
die  of  the  same  stroke  or  poisoning  in  P^ngland ;  or  where  any  person 
should  be  feloniously  stricken  or  poisoned  at  any  place  in  England,  and 
should  die  of  the  same  stroke  or  poisoning  upon  the  sea  or  at  any  place 
out  of  England ;  in  either  of  said  cases  the  offenders,  both  principals 
and  accessories,  might  be  indicted,  tried,  convicted  and  sentenced  in 
the  county  in  England  in  which  such  death-stroke  or  poisoning  should 
happen  respectively,  with  the  same  effect  as  if  the  felonious  stroke  and 
ileath  thereby  ensuing,  or  poisoning  and  death  thereby  ensuing,  had 
happened  in  the  same  county.  St.  2  Geo.  II.  c.  21.  That  statute  did 
not  extend  to  the  colonies,  and  was  repealed  by  St.  9  Geo.  IV.  c.  31, 
§  1 ;  and  no  suggestion  appears  to  have  been  made,  while  it  was  in 
force,  of  its  being  limited  in  its  application  to  British  subjects.  4  Bl. 
Com.  303  ;  1  East  P.  C.  366.  The  only  published  exposition  of  it  is  in 
an  opinion  given  by  Sir  James  Marriott  as  advocate-general,  who, 
looking  upon  the  subject  in  the  view  of  the  law  of  nations,  wrote : 
"■  With  respect  to  murders,  when  persons  die  in  a  foreign  country  of  a 
wound  received  within  this  realm,  or  die  in  this  realm  of  a  wound  re 
ceived  in  a  foreign  country,  in  either  alternative  the  party  giving  the 
wound,  and  his  accessory  or  accessories,  by  St.  2  Geo.  II.  c  21,  must 
be  tried  in  England,  the  statute  considering  the  cause  and  effect  as  one 
continuity  of  action  without  interval-,  in  order  to  found  a  domestic  juris- 
diction and  to  reach  the  crime."  Forsyth's  Opinions  on  Constitutional 
Law,  218.  In  The  King  v.  Farrel,  I  W.  Bl.  459,  Lord  Mansfield 
treated  the  question  whether  a  murder  by  a  mortal  stroke  on  the  high 
seas,  from  which  death  ensued  in  Ireland,  was  triable  in  Ireland,  as  de- 
pending upon  the  question  whether  there  was  any  Irish  statute  upon 
the  subject.  In  fact,  the  Irish  St.  of  10  Car.  I.  contained  provisions 
similar  to  the  English  Sts.  of  Edw.  VL  and  Geo.  II.  1  Gabbett's 
Crim.  Law,  501.  Thus  stood  the  law  of  the  mother  country  at  the 
time  of  the  American  Revolution. 

The  courts  of  the  United  States  have  held  that  a  mortal  stroke  on 
the  high  seas,  from  which  death  ensues  on  land,  either  in  a  foreign 
country  or  within  the  United  States,  cannot  be  indicted  under  an  act  of 
Congress  providing  for  the  punishment  of  murder  or  manslaughter  on 
the  high  seas.  The  reason  was  thus  stated  by  Mr.  Justice  Washington, 
in  the  leading  case:  "The  death,  as  well  as  the  mortal  stroke,  must 
happen  on  the  high  seas,  to  constitute  a  murder  there."  "  The  present 
is  a  case  omitted  in  the  law  ;  and  the  indictment  cannot  be  sustained." 
"  It  would  be  inconsistent  with  common  law  notions  to  call  it  murder; 
but  Congress,  exercising  the  constitutional  power  to  define  felonies  on 


172  COMMONWEALTH    V.    MACLOON.  [CHAP.  II. 

the  high  seas,  may  certainly  provide  that  a  mortal  stroke  on  the  high 
sea,  wherever  the  death  may  happen,  shall  be  adjudged  to  be  a  felony." 
United  States  v.  M'Gill,  4  ball.  427  ;  s.  c.  1  Wash.  C.  C.  463.  United 
States  V.  Armstrong,  2  Curtis  C.  C.  446.  Congress  has  accordingly 
passed  statutes  providing  for  the  punishment,  at  first  of  murder  only, 
and  afterwards  of  manslaughter,  by  a  blow,  wound  or  poison  on  the 
high  seas,  or  in  any  river  or  bay,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States,  and  out  of  the  jurisdiction  of  any 
particular  state,  followed  by  death  on  land.  U.  S.  Sts.  1825,  c.  65,  §  4  ; 
1857,  c.  116,  §  1. 

The  legislature  of  the  Commonwealth,  from  an  earlier  period,  has 
asserted  the  right  of  punishing  such  crimes  in  the  county  where  they 
take  final  effect  by  destroying  life.  At  February  term,  1795,  of  this 
court  in  Suffolk,  a  conviction  of  manslaughter  at  common  law  was  had 
upon  an  indictment  charging  that  Joseph  Hood  on  the  high  seas  mor- 
tally injured  John  Antony,  by  assaulting  and  beating  him  wuth  a  rope 
and  a  stave  and  his  hands  and  feet,  and  exposing  him  without  sufficient 
covering  to  the  cold,  winds,  and  storms,  and  depriving  him  of  necessary 
food,  of  all  which  injuries  he  languished  on  the  high  seas  and  at  Boston 
in  said  county,  and  died  at  Boston.  At  August  term,  1795,  judgment 
was  arrested,  upon  the  ground  that  the  indictment  charged  that  the 
cause  of  death  arose  on  the  high  seas  and  not  within  the  jurisdiction  of 
this  court.  Hood's  Case,  Rec.  1795,  fol.  216,  and  papers  on  file.  It 
was  to  cure  the  defect  thus  declared  to  exist  in  our  law,  that  the  legis- 
lature at  its  next  session,  on  the  15th  of  February,  1796,  passed  the 
St.  of  1795,  c  45,  §  2,  by  which  it  was  enacted  that  "  where  any  per- 
son hereafter  shall  be  feloniously  stricken,  poisoned,  or  injured,  on  the 
high  seas,  and  without  the  limits  of  this  Commonwealth,  and  die  of  the 
same  stroke,  poisoning  or  injury  in  any  county  thereof,  that  then  an  in- 
dictment thereof,  found  by  the  grand  jurors  of  the.  county  where  the 
death  shall  happen,  before  the  justices  of  the  Supreme  Judicial  Court 
there  held,  shall  be  as  good  and  effectual  in  law  as  if  the  stroke  had 
been  given  or  the  poisoning  or  injur}'  done  in  the  same  county  where 
the  party  shall  die."  By  later  statutes,  all  indictments  are  returned 
into  the  lower  court.  Webster  v.  Commonwealth,  5  Cush.  386  ;  Gen. 
Sts.  e.  171,  §§  1  &  seq.,  21  &  seq.  But  the  substance  of  this  provision, 
omitting  the  word  "  feloniously"  (which  might  be  somewhat  difficult  of 
application  to  an  act  not  done  under  laws  of  which  our  courts  have 
judicial  knowledge)  and  extended  to  cases  in  which  the  mortal  wound 
or  injury  is  given  on  land  without  the  limits  of  the  Commonwealth,  has 
been  embodied  in  the  Rev.  Sts.  c.  133,  §  9,  and  thence,  with  merely 
verbal  changes,  in  the  Gen.  Sts.  c.  171,  §  19,  on  which  this  mdictment 
is  founded.  Neither  of  these  statutes  appears  to  have  been  made  the 
subject  of  judicial  exposition.  But  a  law  which  has  been  kept  on  the 
statute  book  for  such  a  length  of  time  by  repeated  enactments  is  not  to 
be  lightly  declared  invalid  for  exceeding  the  legislative  power.  And  it 
comes  within  the  principle  by  which  the  preceding  section,  relating  to 


SECT.  VI.]  COMMONWEALTH    V.    MACLOON.  173 

death  resulting  in  one  count}'  from  an  unlawful  act  in  another,  was  held 
valid  in  Counnonwealth  v.  Parker,  2  Pick.  550,  before  cited. 

A  similar  enactment,  adding,  after  "  high  seas,"  "  or  on  any  other 
navigable  waters,"  has  been  sustaaied  upon  full  argument  and  consider- 
ation by  the  Supreme  Court  of  Michigan.     Tyler  v.  People,  8  Mich.  320. 

The  most  plausible  form  of  the  argument  against  the  jurisdiction  is, 
that  the  coming  into  the  state  is  the  act  not  of  the  wrong-doer,  but  of 
the  injured  person,  and  therefore  should  not  subject  the  former  to  the 
jurisdiction,  merely  because  the  latter  happens  to  die  there.  But  it  is 
the  nature  and  the  right  of  every  man  to  move  about  at  his  pleasure, 
except  so  far  as  restrained  by  law  ;  and  whoever  gives  him  a  mortal 
blow  assumes  the  risk  of  this,  and  in  the  view  of  the  law,  as  in  that  of 
morals,  takes  his  life  wherever  he  hajjpens  to  die  of  that  wound  ;  and 
may  be  there  punished  if  the  laws  of  the  country  have  been  so  framed 
as  to  cover  such  a  case. 

In  State  v.  Carter,  3  Butcher,  499,  the  supreme  court  of  New  Jersey 
held  that  a  man  could  not  be  indicted  in  that  state  for  manslaughter  by 
mortal  bruises  given  in  New  York,  of  which  the  person  injured  died  in 
New  Jersey.  But  the  only  statute  of  that  state  upon  the  subject,  as 
was  observed  by  Mr.  Justice  Vredenburgh  in  delivering  the  judgment 
of  the  court,  evidently-  relates  to  murder  only,  and  not  to  manslaughter. 
His  remarks  upon  the  power  of  the  legislature  of  New  Jersey  to  provide 
for  the  punishment  of  such  a  case  are  therefore  purely  obiter  dicta  y 
and  they  are  unsupported  by  any  reference  to  authorities,  and  present 
no  considerations  which  require  further  discussion. 

Grosvenor  v.  St.  Augustine,  12  East,  244,  was  not  a  criminal  case, 
but  in  the  nature  of  an  action  against  the  hundred  on  the  St.  of  19 
Geo.  II.  c.  34,  §  6,  which  provided  that  if  any  officer  of  the  revenue 
should  be  beaten,  wounded,  maimed  or  killed  l)y  a  smuggler,  the  inhabi- 
tants of  the  lath  in  such  counties  as  were  divided  into  laths,  and  in 
other  counties  the  inhabitants  of  the  hundred,  "  where  such  fact  shall 
be  committed,"  should  pay  all  damages  suffered  by  such  beating, 
wounding  or  maiming,  and  one  hundred  pounds  to  the  executor  or 
administrator  of  each  person  so  killed.  It  was  indeed  held  that  this  pen- 
alty might  be  recovered  by  the  executor  of  a  revenue  officer  who  re- 
ceived a  mortal  wound  in  a  boat  between  high  and  low  water  mark,  of 
which  he  afterwards  died  on  the  high  sea,  by  a  shot  fired  from  the  shore 
within  the  lath.  But  that  was  upon  the  construction  of  the  particular 
statute,  as  appears  from  Lord  Ellenborough's  judgment.  "The  shot 
which  produced  the  death,  having  been  fired  from  the  shore  within  the 
lath,  brings  the  case  within  the  fair  meaning  of  the  act,  the  object  of 
which  was  to  make  the  inhabitants  of  that  place  where  the  act  was 
done  which  caused  the  death  answerable  for  it,  in  order  to  interest  them 
in  repressing  the  offences  against  which  the  act  was  levelled."  All  the 
authorities  agree  that  the  mere  fact  of  the  shot  being  fired  from  the 
shore  would  not  give  the  courts  of  common  law  jurisdiction  of  an  in- 
dictment for  homicide.  Rex  v.  Coombes,  2  Leach  (4th  ed.),  388;  2 
Chalmers  Opinions,  217;  United  States  v.  Davis,  2  Sumner,  485. 


174  COMMONWEALTH   V.   MACLOON.  [CHAP.  II. 

The  learned  counsel  for  the  defendants  much  relied  on  the  case  of 
Regina  v.  Lewis,  Dearsly  »1-  Bell  182  ;  S  C  7  Cox  Crim.  Cas.  277. 
That  was  an  indictment  on  the  St.  of  9  Geo.  IV.  c.  31,  §  8,  which  was 
held  not  to  cover  the  case  of  a  foreigner  dying  in  England  from  injuries 
inflicted  by  another  foreigner  in  a  foreign  vessel  upon  the  high  seas. 
But,  although  at  the  argument  two  of  the  judges,  Mr.  Justice  Coleridge 
and  Mr.  Baron  Martin,  expressed  doubts  whether  parhament  could 
legislate  for  the  puni.shment  of  such  a  crime,  none  of  the  judges  except 
Mr.  Justice  Crompton  denied  the  power ;  Lord  Chief  Justice  Cockburn 
suggested  that  the  section  under  which  the  indictment  was  found,  taken 
in  connection  with  the  next  preceding  section,  relating  to  murder  or 
manslaughter  in  a  foreign  country,  which  was  in  terms  limited  to 
British  subjects,  must  be  equally  limited  ;  and  after  advisement  the 
opinion  of  the  court  was  put  upon  that  ground  only.  The  case  of  Nga 
Hoong  V.  The  Queen,  7  Cox  Crim.  Cas.  489,  was  decided  upon  like 
considerations.  Both  of  those  cases,  therefore,  merely  held  that  the 
whole  tenor  of  the  statute  in  question  showed  that  it  was  not  intended 
to  cover  cases  of  foreigners  sailing  on  the  high  seas  under  a  foreign 
flag  .  applying  the  same  rule  of  construction  as  the  Supreme  Court  of 
the  United  States  in  United  States  v.  Palmer,  3  Wheat.  631-634,  and 
United  States  v.  Pirates,  5  Wheat.  195-197.  Whether  an  explicit 
statute  of  the  state  where  a  murdered  man  dies  will  warrant  the  in- 
dictment and  trial  of  his  murderer  if  found  within  the  jurisdiction  is 
quite  a  different  question. 

Neither  of  the  statutes  of  the  Commonwealth  upon  this  subject  has 
ever  contained  an}'  words  limiting  the  description  of  the  persons  by 
whom  the  offence  might  be  committed  ;  and  the  existing  statute  clearly 
manifests  the  intention  of  the  legislature  to  punish  all  who  without 
legal  justification  cause  the  death  of  any  person  within  the  Common- 
wealth, wherever  the  first  wrongful  act  is  done,  or  of  whatever  country 
the  wrong  doer  is  a  citizen.  The  power  of  the  Commonwealth  to  punish 
the  causing  of  death  within  its  jurisdiction  is  whoU}'  independent  of  the 
power  of  the  United  States,  or  of  the  nation  to  which  the  vessel  be- 
longs, to  punish  the  inflicting  of  the  injury  on  the  high  seas.  And  upon 
full  consideration  the  court  is  unanimously  of  opinion  that  there  is 
nothing  in  the  Constitution  or  laws  of  the  United  States,  the  law  of 
nations,  or  the  Constitution  of  the  Commonwealth,  to  restrain  the  legis- 
lature from  enacting  such  a  statute. 

£Jxceptiojis  overruled. 


SECT.  VI.]  PEOPLE  V.   BOTKIN.  175 

PEOPLE   V.  BOTKIN. 
Supreme  Court  of  California.     1901. 

[Reported  132  Cal.  231.] 

Garoutte,  J.  Defendant  has  been  convicted  of  the  crime  of  mur- 
der, and  prosecutes  this  appeal.  The  charge  of  the  court  given  to  the 
jury  upon  the  law  contained  declarations  which  were  held  to  be  unsound 
in  People  v.  Verneseneckockockhotf,  129  Cal.  497.  In  view  of  the 
decision  in  that  case,  the  attorney-general  concedes  that  the  judgment 
should  be  reversed  and  the  cause  remanded  to  the  trial  court  for 
further  proceedings.  But  defendant  claims  that  she  is  not  triable  at 
all  by  the  courts  of  this  state,  and  this  contention  should  now  be  passed 
upon.  For  if  maintainable  a  second  trial  becomes  a  useless  expenditure 
of  money,  time,  and  labor,  and  necessarily  should  not  be  had. 

For  the  purposes  of  testing  the  claim  of  lack  of  jurisdiction  in  the 
courts  of  California  to  try  defendant,  the  facts  of  this  case  may  be 
deemed  as  follows  :  Defendant,  in  the  city  and  county  of  San  Francisco, 
state  of  California,  sent  by  the  United  States  mail  to  Elizabeth  Dun- 
ning, of  Dover,  Delaware,  a  box  of  poisoned  candy,  with  intent  that 
said  Elizabeth  Dunning  should  eat  of  the  candj'  and  her  death  be 
caused  thereby.  The  candj'  was  received  b}-  the  party  to  wliom  ad- 
dressed, she  partook  thereof,  and  her  death  was  the  result.  Upon 
these  facts  may  the  defendant  be  charged  and  tried  for  the  crime  of 
murder  in  the  courts  of  the  state  of  California?  We  do  not  find  it 
necessar}'  to  declare  what  the  true  rule  may  be  at  common  law  upon 
this  state  of  facts,  for,  in  our  opinion,  the  statute  of  this  state  is  broad 
enough  to  cover  a  case  of  the  kind  here  disclosed.  There  can  be  no 
question  but  that  the  legislature  of  this  state  had  the  power  to  declare 
that  the  acts  here  pictured  constitute  the  crime  of  murder  in  this  state, 
and  we  now  hold  that  the  legislative  body  has  made  that  declaration. 

Section  27  of  the  Penal  Code  reads  as  follows  :  — 

"The  following  persons  are  liable  to  punishment  under  the  laws  of 
this  state :  — 

"  1.  All  persons  who  commit,  in  whole  or  in  part,  any  crime  within 
this  state  ; 

"  2.  AH  who  commit  larceny  or  robber}"  out  of  this  state,  and  bring 
to,  or  are  found  with  the  property  stolen,  in  this  state  ; 

"3.  All  who,  being  out  of  this  state,  cause  or  aid,  advise  or  en- 
courage, another  person  to  commit  a  crime  within  this  state,  and  are 
afterwards  found  therein." 

Subdivision  1  covers  the  facts  of  this  ease.  The  acts  of  defendant 
constituted  murder,  and  a  part  of  those  acts  were  done  by  her  in  this 
state.  Preparing  and  sending  the  poisoned  candy  to  Elizabeth  Dun- 
ning,   coupled    with  a  murderous    intent,    constituted   an   attempt   to 


176  PEOPLE    V.    BOTKIN.  [CHAP.  II. 

commit  murder,  and  defendant  could  have  been  prosecuted  in  this  state 
for  that  crime,  if,  for  any  reason,  the  candy  had  failed  to  fulfill  its 
deadly  mission.  That  being  so,  —  those  acts  being  sufficient,  standing 
alone,  to  constitute  a  crime,  and  those  acts  resulting  in  the  death  of 
the  person  sought  to  be  killed,  —  nothing  is  plainer  than  that  the 
crime  of  murder  was  in  part  committed  within  this  state.  The  murder 
being  committed  in  part  in  this  state,  the  section  of  the  law  quoted  de- 
clares that  persons  committing  murder  under  those  circumstances  "  are 
hable  to  punishment  under  the  laws  of  this  state."  The  language 
quoted  can  have  but  one  meaning,  and  that  is  :  a  person  committing 
a  murder  in  part  in  this  state  is  punishable  under  the  laws  of  this  state, 
the  same  as  though  the  murder  was  wholly  committed  in  this  state. 

Counsel  for  defendant  insist  that  this  section  contemplates  only 
offences  committed  by  persons  who,  at  the  time,  are  without  the  state. 
This  construction  is  not  sound.  For  as  to  subdivision  1,  it  is  not  at 
all  plain  that  a  person  without  the  state  could  commit,  in  whole,  a 
crime  within  the  state.  Again,  if  the  crime  in  whole  is  committed 
within  the  state  by  a  person  without  the  state,  such  a  person  could 
not  be  punished  under  the  laws  of  this  state,  for  the  state  has  not  pos- 
session of  his  body,  and  there  appears  to  be  no  law  by  which  it  may 
secure  that  possession.  Indeed,  all  of  the  subdivisions  of  the  section 
necessarily  contemplate  a  case  where  the  person  is,  or  comes,  within  tlie 
state.  If  the  fraraers  of  the  section  had  intended  by  subdivision  1  to 
cover  the  case  of  persons  only  who  were  without  the  state  when  the 
acts  were  committed  which  constitute  the  crime,  they  would  have  in- 
serted in  the  section  the  contingency  found  in  the  remaining  sub- 
divisions, which  subdivisions  contemplate  a  return  to  the  state  of  the 
person  committing  the  crime.  It  is  plain  that  the  section  by  its 
various  provisions  was  intended  to  embrace  all  i^ersons  punishable 
under  the  laws  of  the  state  of  CaUfornia.  The  defendant,  having 
committed  a  murder  in  part  in  the  state  of  CaUfornia,  is  punishable 
under  the  laws  of  the  state,  exactly  in  the  same  way,  in  the  same 
courts,  and  under  the  same  procedure,  as  if  the  crime  was  committed 
entirely  within  the  state. 

For  the  foregoing  reasons  the  judgment  and  orders  are  reversed  and 
the  cause  rpmanded. 


SECT.  I.]  REX   V.   MARTIN.  177 

CHAPTER   III. 
THE    OFFENCE:    MODIFYING    CIRCUMSTANCES. 


SECTION  I. 
Participation  of  a  Public  Officer, 

REX  V.   MARTIN. 
Crown  Case  Reserved,     1811. 

[Reported  Russell  cj-  Rt/an,  196.] 

The  defendant  was  tried  before  Mr.  Baron  Wood,  at  the  Lent 
assizes,  for  Nortliamptonshire,  in  the  year  1811,  upon  an  indictment  for 
a  misdemeanor  in  unhiwfull}'  aiding  and  assisting  Antoine  Mallet,  a 
prisoner  at  war  detained  within  certain  limits  at  Northampton,  to 
escape  and  go  at  large  out  of  the  said  Hmits,  and  conducting  hira 
and  bringing  him  to  Preston  Turnpike  Gate,  at  Northampton,  with 
intent  to  enable  and  assist  him  to  escape  and  go  at  large  out  of  this 
kingdom  to  parts  beyond  tlie  seas. 

The  case  appeared  to  be  this. 

The  defendant  lived  at  Wantage,  in  Berkshire  ;  she  came  to  Newport 
Pagnell,  and  there  hired  a  post-chaise  to  take  her  to  Northampton,  and 
back.  The  post-bo^'  drove  her  to  Northampton,  wliere  she  got  out,  and 
the  post-boy  went  to  his  usual  inn,  with  orders  to  return  to  the  place 
where  he  set  her  down,  after  he  had  baited  and  rested  his  horses.  The 
post-boy  in  about  an  hour  returned,  took  the  defendant  up  again  in 
Northampton,  and  proceeded  towards  Newport,  and  when  they  had  just 
got  without  the  town  (and  within  the  limits  allowed  to  the  prisoners  of 
war,  being  one  mile  from  the  extremity  of  the  town),  she  called  to  the 
post-boy  to  stop  and  take  up  a  friend  of  hers  that  was  walking  along 
the  road.  The  post-bo}'  stopped,  and  Mallet  got  in,  and  they  pro- 
ceeded together  to  Preston  Turnpike  Gate  (which  is  without  the  afore- 
said limits),  in  the  road  to  Newport,  when  they  were  both  stopped  and 
apprehended  by  the  commissary,  or  agent  for  French  prisoners  and  his 
assistant  who  had  watched  them. 

It  appeared  in  evidence  that  there  was  no  real  escape  on  the  part  of 
Mallet,  but  that  he  was  employed  by  the  agent  for  French  prisoners, 
under  the  direction  of  the  Transport  Board  to  detect  the  defendant,  who 
was  supposed  to  have  been  instrumental  in  the  escape  of  many  French 
prisoners  from  Northampton,  and  that  all  the  acts  done  by  Mallet,  the 
contract  for  the  money  to  be  paid  to  the  defendant,  and  the  place  to 
which  they  were  to  go,  before  they  would  be  stopped,  were  previously 
concerted  between  the  agent  for  the  prisoners  and  Mallet,  and  Mallet 
had  no  intention  to  go  away  or  escai^e. 


178  GRIMM   V.   UNITED    STATES.  [CHAP.  III. 

It  was  objected  to  by  the  counsel  for  the  defendant  that  the  commis- 
sar\',  having  given  license  to  Mallet  to  go  to  the  place  he  did  go  to,  had 
enlarged  the  limits  of  his  parole  to  that  place,  and  therefore  Mallet 
could  not  be  said  to  have  escaped,  nor  could  the  defendant  be  said  to 
have  assisted  him  in  escaping  out  of  the  limits  of  his  parole. 

The  learned  judge  proceeded  in  the  trial,  and  the  defendant  was 
convicted,  but  he  respited  the  judgment  and  reserved  the  point  for  the 
consideration  of  the  judges. 

In  Trinity  term,  15th  June,  1811,  all  the  judges  met  (except  Law- 
rence, J.,)  when  they  held  the  conviction  wrong,  inasmuch  as  the 
prisoner  never  escaped  or  intended  to  escape. 


GRIMM  V.  UNITED  STATES. 

Supreme  Court  of  the  United  States.     1895. 

^Reported  156    U.  S.    604.] 

Indictment  under  Rev.  St.  §  3893  for  mailing  obscene  pictures.^ 
Brewer,  J.  ...  A  final  matter  complained  of  grows  out  of  these  facts  : 
It  appears  that  the  letters  to  defendant  —  the  one  signed  "  Herman 
Huntress,"  described  in  the  second  count,  and  one  signed  '*  William  W. 
Waters,"  described  in  the  fourth  count  —  were  written  by  Robert  W. 
McAfee;  that  there  were  no  such  persons  as  Huntress  and  Waters; 
that  McAfee  was  and  had  been  for  years  a  post-office  inspector  in  tlie 
employ  of  the  United  States,  and  at  the  same  time  an  agent  of  the 
Western  Society'  for  the  Suppression  of  Vice  ;  that  for  some  reasons 
not  disclosed  by  the  evidence  McAfee  suspected  that  defendant  was 
engaged  in  the  business  of  dealing  in  obscene  pictures,  and  took  this 
method  of  securing  evidence  thereof;  that  after  receiving  the  letters 
written  by  defendant,  he,  in  the  name  of  Huntress  and  Waters,  wrote 
for  a  supply  of  the  pictures,  and  received  from  defendant  packages  of 
pictures  which  were  conceded  to  be  obscene.  Upon  these  facts  it  is 
insisted  that  the  conviction  cannot  be  sustained  because  the  letters  of  de- 
fendant were  deposited  in  the  mails  at  the  instance  of  the  govern- 
ment, and  through  the  solicitation  of  one  of  its  officers  ;  that  they  were 
directed  and  mailed  to  fictitious  persons ;  that  no  intent  can  be  imputed 
to  defendant  to  convey  information  to  other  than  the  persons  named 
in  the  letters  sent  by  him,  and  that  as  they  were  fictitious  persons 
there  could  in  law  be  no  intent  to  give  information  to  any  one.  This 
objection  was  properly  overruled  by  the  trial  court.  There  has  been 
much  discussion  as  to  the  relations  of  detectives  to  crime,  and  counsel 
for  defendant  relies  upon  the  cases  of  United  States  v.  Whittier,  5 
Dillon,  35  ;  United  States  v.  Matthews,  35  Fed.  Rep.  890 ;  United 
States  V.  Adams,  59  Fed.  Rep.  674  ;  Saunders  v.  People,  38  Michigan, 

1  The  statement  of  facts  and  part  of  the  opinion,  dealing  with  the  sufficiency  of 
the  indictment,  are  omitted.  —  Ed. 


SECT.  I.]  GRIMM   V.    UNITED    STATES.  179 

218,  in  support  of  the  contention  that  no  conviction  can  be  sustained 
under  the  facts  in  this  case. 

It  is  unnecessary  to  review  these  cases,  and  it  is  enough  to  say  that 
we  do  not  think  they  warrant  the  contention  of  counsel.  It  does  not 
appear  that  it  was  the  purpose  of  the  post-otlice  inspector  to  induce  or 
solicit  the  commission  of  a  crime,  but  it  was  to  ascertain  whether  the 
defendant  was  engaged  in  an  unlawful  business.  The  mere  facts  that 
the  letters  were  written  under  an  assumed  name,  and  that  he  was  a 
government  official  —  a  detective,  he  ma}'  be  called  —  do  not  of  them- 
selves constitute  a  defence  to  the  crime  actually  committed.  The 
official,  suspecting  that  the  defendant  was  engaged  in  a  business  offen- 
sive to  good  morals,  sought  information  directl}-  from  him,  and  the 
defendant  responding  thereto,  violated  a  law  of  the  United  States  by 
using  the  mails  to  conve}^  such  information,  and  he  cannot  plead  in 
defence  that  he  would  not  have  violated  the  law  if  inquir}-  had  not 
been  made  of  him  by  such  government  official.  The  authorities  in 
support  of  this  proposition  are  many  and  well  considered.  Among 
others  reference  msiy  be  made  to  the  cases  of  Bates  v.  United  States, 
10  Fed.  Rep.  92,  and  the  authorities  collected  in  a  note  of  Mr.  Whar- 
ton, on  page  97;  United  States  v.  Moore,  19  Fed.  Rep.  30,  United 
States  r.  Wight,  38  Fed.  Rep.  106,  in  which  the  opinion  was  delivered 
by  Mr.  Justice  Brown,  then  District  Judge,  and  concurred  in  by 
Mr.  Justice  Jackson,  then  Circuit  Judge ;  United  States  v.  Dorse}', 
40  Fed.  Rep.  752  ;  Commonwealth  v.  Baker,  155  Mass.  287,  in  which 
the  court  held  that  one  who  goes  to  a  house  alleged  to  be  kept  for 
illesral  gamiuo;,  and  engages  in  such  gamins;  himself  for  the  express 
purpose  of  appearing  as  a  witness  for  the  government  against  the  pro- 
prietor, is  not  an  accomplice,  and  the  case  is  not  subject  to  the  rule 
that  no  conviction  should  be  had  on  the  uncorroborated  testimony 
of  an  accomplice  ;  People  v.  Noelke,  94  N.  Y.  137,  in  which  the  same 
doctrine  was  laid  down  as  to  the  purchaser  of  a  lottery  ticket,  who 
purchased  for  the  purpose  of  detecting  and  punishing  the  vendor ; 
State  y.  Jansen,  22  Kansas,  498,  in  which  the  court,  citing  several  au- 
thorities, discusses  at  some  length  the  question  as  to  the  extent  to  which 
participation  by  a  detective  affects  the  liability  of  a  defendant  for 
a  crime  committed  b}-  the  two  jointly ;  State  v.  Stickney,  53  Kansas, 
308.  But  it  is  unnecessary  to  multiply  authorities.  The  law  was 
actually  violated  by  the  defendant ;  he  placed  letters  in  the  post- 
office  which  conveyed  information  as  to  where  obscene  matter  could 
be  obtained,  and  he  placed  them  there  with  a  view  of  giving  such  infor- 
mation to  the  person  who  should  actually  receive  those  letters,  no 
matter  what  his  name ;  and  the  fact  that  the  person  who  wrote  under 
these  assumed  names  and  received  his  letters  was  a  government 
detective  in  no  manner  detracts  from  his  guilt. 

These  are  all  the  questions  presented  bj-  counsel.     We  see  no  error 
in  the  rulings  of  the  trial  court,  and  the  judgment  is,  therefore. 

Affirmed, 


180  PEOPLE    V.   MILLS.  [CHAP.  III. 

PEOPLE  V.  MILLS. 
Court  of  Appeals  of  New  York.     1904. 
[Reporied  178  N.Y.  274.] 

Indictment  for  theft  of  public  records.  The  defendant  was  con- 
i^icted  of  an  attempt  to  commit  larceny  of  the  records.  The  defendant, 
desiring  to  have  a  certain  indictment  removed  from  the  records,  offered 
an  assistant  district  attorney  a  bribe  to  remove  and  give  it  np. 
The  district  attorney  being  informed  of  the  scheme  directed  his  assist- 
ant seemingly  to  comply  with  it ;  the  assistant  thereupon,  for  the  pur- 
pose of  apprehending  the  defendant,  removed  the  indictment  and  handed 
it  to  the  defendant,  who  was  thereupon  arrested  by  police  officers  in 
waiting.  A  judgment  of  conviction  was  affirmed  by  the  Appellate  Divi- 
sion, and  an  appeal  was  taken. ^ 

Vann,  -T.  The  indictments  against  Dr.  Flower  were  records  or  doc- 
uments filed  in  a  public  office,  under  the  authority  of  law.  (Code  Crim. 
Pro.  §  272,  Code  Civ.  Pro.  §  866.)  They  were  the  property  of  the 
state  and  a  wilful  and  unlawful  removal  of  them  constituted  a  crime 
under  section  94  of  the  Penal  Code.  Any  one  who  unlawfully  obtained 
or  appropriated  them  was  guilty  of  grand  larceny  in  the  second  degree, 
according  to  the  provisions  of  another  section  of  the  same  statute. 
(Penal  Code,  §  531.)  Whoever  is  guilty  of  violating  either  section  may 
be  convicted  of  an  attempt  to  commit  the  offence  specified  therein, 
even  if  it  appears  on  the  trial  that  the  crime  was  fully  consummated, 
unless  the  court  in  its  discretion  discharges  the  jury  and  directs  the 
defendant  to  be  tried  for  the  crime  itself,  wiiich  was  not  done  in  the 
case  before  us.  (Code  Crim.  Pro.  §§  35  and  685).  The  jury  found 
the  defendant  guilty  of  an  attempt  both  to  remove  and  to  steal  the  indict- 
ments, and  after  affirmance  by  the  Appellate  Division  we  are  confined 
in  our  review  to  such  questions  as  were  raised  by  exceptions  taken 
during  the  ti'ial. 

In  view  of  the  able  and  exhaustive  opinion  of  the  Appellate  Division, 
the  only  question  we  feel  called  upon  to  consider  is  that  raised  by  the 
challenge  of  the  learned  counsel  for  the  appellant  in  the  nature  of 
a  demurrer  to  the  evidence.  He  claims  that  even  on  the  assumption 
that  all  the  evidence  for  the  prosecution  is  true,  still  the  facts  thus 
proved  do  not  constitute  the  crime  charged  in  either  count  of  the 
indictment.  His  argument  is  that  the  object  of  the  district  attorney 
was  not  to  detect,  but  to  create  a  crime,  and  that  no  crime  was  com- 
mitted by  the  defendant  in  taking  the  indictments  into  his  possession, 
because  he  took  them  with  the  consent  of  the  state  as  represented  by 
the  district  attorney. 

The  flaw  in  this  argument  is  found  in  the  fact  that  the  records  were 
the  property  of  the  state,  not  of  the  district  attorney-,  and  that  the  latter 

1  This  short  statement  is  substituted  for  the  longer  statement  of  facts  by  the  Repor- 
ter.    Part  of  the  opinion  is  omitted. —  Ed. 


SECT.  I.J  PEOPLE    V.    MILLS.  181 

could  not  hiwfully  give  them  away  or  peniiil  tboiu  to  be  taken  by  the 
defendant.  Purity  of  intention  only  could  i)revent  the  action  of  the 
district  attorney  from  being  a  crime  on  his  part.  This  is  true  also  as 
to  the  detective,  for  if  either  had  in  fact  intended  that  tlie  defendant 
should  permanently  remove  the  indictments,  and  steal,  ap|)ropriate  or 
destroy  them,  he  would  have  come  within  the  statute.  Neither  of  those 
otlicers  represented  the  state  in  placing  the  records  where  the  defendant 
could  take  them,  but  each  was  acting  as  an  individual  only.  Neither 
had  the  right  or  power,  as  a  public  officer,  to  deliver  them  to  the  de- 
fendant, and  if  either  had  acted  with  an  evil  [jurpose,  his  act  would 
have  been  criminal  in  character.  .  .  . 

AYe  shall  not  review  the  authorities  cited  on  either  side,  for  that  duty 
has  been  so  thoroughly  discharged  by  the  Appellate  Division  tiiat  we 
can  throw  no  further  light  upon  the  subject.     We  merely  state  that  an 
important  distinction  between  this  case  and  those  relied  upon  bv  the 
appellant  is  found  in  the  difference  between  public  and  private  owner- 
ship of  the  property  taken  by  the  accused.      In  most  cases  some  third 
person  is  injured  by  the  crime  and  is  directly  or  indirectly  the  com- 
plainant, but  in  this  case  the  state  was,  as  it  must  be  in  all  criminal 
cases,  the  prosecutor  and  it  was  also  the  injured  party,  for  its  property 
was  the  subject  of  the  attempt  at  larceny.     If  an  individual  owner  vol- 
untarily delivers  his  property  to  one  who  wishes  to  steal  it  there  is  no 
trespass,  but  when  the  property  of  the  state  is  delivered  by  auy  one, 
under  any  circumstances,  to  any  person  for  the  purpose  of  having  him 
steal  it  and  he  takes  it  into  his  possession  with  intent  to  steal  it,  there 
is  a  trespass  and  the  attempt  is  a  crime.     The  state  did  not  solicit  or 
persuade  or  temjit  the  defendant,  any  more  than  it  took  his  money 
when  he  handed  itovei-  to  the  detective.     Neither  did  the  district  attor- 
ne}',  as  such,  but  Mr.  Jerome  did,  acting  as  an  individual,  with  the  best 
of  motives,  but  without  authority  of  law  and,  hence,  his  action  did  not 
bind  the  state.      While  the  courts  neither  adopt  nor  approve  the  action 
of  the  officers,  which  they  hold  was  unauthorized,  still  they  should  not 
hesitate  to  punish  the  crime  actually  comuiitted  by  the  defendant.     It 
is  their  duty  to  protect  the  innocent  and  punish  the  guilty.     We  are 
asked  to  protect  the  defendant,  not  because  he  is  innocent,  but  because 
a  zealous  public  officer  exceeded  his  powers  and  held  out  a  liait.     The 
courts  do  not  look  to  see  who  held  out  the  bait,  but  to  see  who  took  it. 
When  it  was    found  that  the  defendant  took  into  his  possession  the 
property-  of  the  state  with  intent  to  steal  it,  an  offence  against  public 
justice  was  established  and  he  could  not  insist  as  a  defence  that  he 
would  not  have  committed  the  crime  if  he  had  not  been  tempted  by  a 
public  officer  whom  he  thought  he  had  corrupted.     He  supposed  he  had 
bought  the  assistant  district  attorney  when  he  handed  over  the  money, 
but  he  knew  he  had  not  bought  the  state  of  New  York  and,  hence,  that 
the  assistant  had  no  right  to  give  him  its  property  for  the  purpose  of 
enabling  him  to  steal  it.    The  judgment  of  conviction  should  be  affirmed.^ 
^  O'Brien  and  Bartlett,  JJ.,  delivered  dissenting  opinions. —  Ed. 


182  McDANIEL's   case.  [chap.  III. 

SECTION  11. 

Acquiescence  of  the  Injured  Party. 

McDANIEL'S   CASE. 
Crown  Case  Reserved,     1755. 

[Reported  Foster  C.  L.  121.] 

At  the  Old  Baile}-  session  in  December,  1 755,  Justice  Foster  pro- 
nounced the  judgment  of  the  court  in  the  case  between  the  King  and 
Macdaniel  and  others,  to  the  effect  following  :  — 

The  indictment  chargeth,  that  at  the  general  gaol-delivery  holden  at 
Maidstone  in  the  countj-  of  Kent,  on  the  13th  of  August  in  the  twenty- 
eighth  year  of  the  King,  Peter  Kelly  and  John  Ellis  were  b}'  due  course 
of  law  convicted  of  a  felon}'  and  robbeiy  committed  by  them  in  the 
King's  highway  in  the  parish  of  Saint  Paul  Deptford  in  the  county  of 
Kent,  ujjon  the  person  of  James  Salmon  one  of  the  prisoners  at  the  bar, 
and  that  the  prisoners  Stephen  Macdaniel,  John  Beny,  James  Eagen, 
and  James  Salmon,  before  the  said  robbery,  did  in  the  parish  of  Saint 
Andrew  Holbourn  in  this  cit}',  feloniousl}'  and  malicioush'  comfort,  aid, 
assist,  abet,  counsel,  hire,  and  command  the  said  Peter  Kelly  and  John 
Ellis  to  commit  the  said  felonj'  and  robbeiy. 

On  this  indictment  the  prisoners  have  been  tried,  and  the  jury  have 
found  a  special  verdict  to  this  effect. 

That  Kelly  and  Ellis  were  hy  due  course  of  law  convicted  of  the  said 
felony  and  robbery. 

That  before  the  robbery  all  the  prisoners  and  one  Thomas  Blee,  in 
order  to  procure  to  themselves  the  rewards  given  b}-  act  of  Parliament 
for  apprehending  robbers  on  the  highway,  did  maliciously  and  feloni- 
ously  meet  at  the  Bell  Inn  in  Holbourn  in  this  city  ;  and  did  then  and 
there  agree  that  the  said  Thomas  Blee  should  procure  two  persons  to 
commit  a  robbery  on  the  highway  in  the  parish  of  Saint  Paul  Deptford. 
upon  the  person  of  the  prisoner  Salmon, 

That  for  that  purpose  tliey  did  all  maliciously  and  feloniously  con- 
trive and  agree  that  the  said  Blee  should  inform  the  persons  so  to  be 
procured  that  he  would  assist  them  in  stealing  linen  in  the  parish  of 
.Saint  Paul  Deptford, 

That  in  pursuance  of  this  agreement,  and  with  the  privitv  of  all  the 
prisoners,  the  said  Blee  did  engage  and  procure  the  said  Ellis  and  Kell}' 
to  go  with  him  to  Deptford  in  order  to  steal  linen  ;  but  did  not  at  any 
time  before  the  robber}'  inform  them  or  either  of  them  of  the  intended 
robbery. 

That  in  consequence  of  the  said  agreement  at  the  Bell,  and  with  the 
privity  of  all  the  prisoners,  the  said  Ellis  and  Kell}-  went  with  the  said 
Blee  to  Deptford. 


SECT.  II.]  mcdaniel's  case.  183 

That  the  said  Blee,  Ellis,  and  Kelly  being  there,  and  the  prisoner 
Salmon  being  likewise  there  waiting  in  the  highway  in  pursuance  of  the 
said  agreement,  the  said  Blee,  EUis,  and  Kelly  feloniouslj'  assaulted 
him,  and  took  from  his  person  the  money  and  goods  mentioned  in  the 
indictment. 

They  farther  find  that  none  of  tlie  prisoners  had  an}-  conversation 
with  the  said  Ellis  and  Kelly  or  either  of  them  previous  to  the  robbery ; 
but  they  find,  that  before  the  robbery  the  prisoners  Macdaniel,  Eagen, 
and  Berry  saw  the  said  Ellis  and  Kelly,  and  approved  of  them  as  per- 
sons proper  for  the  purpose  of  robbing  the  said  Salmon. 

But  whether  the  prisoners  are  guilty  in  manner  as  charged  in  the 
indictment,  they  pra}-  the  advice  of  the  court. 

This  special  verdict  hath  been  argued  before  all  the  judges  of 
England.^ 

It  is  expressly  found  that  Salmon  was  party  to  the  original  agree- 
ment at  the  Bell ;  that  he  consented  to  part  with  his  money  and  goods 
under  color  and  pretence  of  a  robbery  ;  and  that  for  that  purpose,  and 
in  pursuance  of  this  consent  and  agreement,  he  went  to  Deptford,  and 
waited  there  till  this  colorable  robbery  was  eflTected. 

This  being  the  state  of  the  case  with  regard  to  Salmon,  the  judges 
are  of  opinion  that  in  consideration  of  law  no  robbery-  was  committed 
on  him.     His  property  was  not  taken  from  him  against  his  will. 

I  come  now  to  tlie  case  which  I  promised  at  the  beginning  to  consider 
and  to  distinguish  from  the  present  case.  One  Norden,  having  been 
informed  that  one  of  the  early  stage-coaches  had  been  frequently  robbed 
near  the  town  by  a  single  highwayman,  resolved  to  use  his  endeavors  to 
apprehend  the  robber.  For  this  purpose  he  put  a  little  money  and  a 
pistol  into  his  pocket,  and  attended  the  coach  in  a  post-chaise,  till  the 
highwayman  came  up  to  the  company  in  the  coach  and  to  him,  and  pre- 
senting a  weapon  demanded  their  money.  Norden  gave  him  the  little 
money  he  had  about  him,  and  then  jumped  out  of  the  chaise  with  his 
pistol  in  his  hand ;  and  with  the  assistance  of  some  others  took  the 
highwayman. 

The  robber  was  indicted  about  a  year  ago  in  this  court  for  a  robbery 
on  Norden,  and  convicted.  And  very  properly,  in  my  opinion,  was  he 
convicted. 

But  that  case  differeth  widely  from  the  present.  In  that  case  Norden 
set  out  with  a  laudable  intention  to  use  his  endeavors  for  apprehending 
the  highwayman,  in  case  he  should  that  morning  come  to  rob  the  coach, 
which  at  that  time  was  totally  uncertain  :  and  it  was  equallv  uncertain 
whether  he  would  come  alone  or  not.  In  the  case  now  under  considera- 
tion there  was  a  most  detestable  conspiracy  between  Salmon  and  the 
rest  of  the  prisoners,  that  his  property  should  be  taken  from  him  under 
the  pretence  and  show  of  a  robbery  ;  and  time,  place,  and  every  other 
circumstance  were  known  to  Salmon  beforehand,  and  agreed  to  by  him. 

^  Part  of  the  ca.se  is  omitted. 


184  eggington's  case.  [chap.  hi. 

In  Norden's  case  there  was  no  concert,  no  sort  of  connection  between 
him  and  the  liighwayinan  ;  nothing  to  remove  or  lessen  the  difficult}'  or 
danger  Norden  might  be  exposed  to  in  the  adventure.  In  the  present 
case  there  was  a  combination  between  Salmon  and  one  at  least  of  the 
supposed  robbers.  1  mean  Blee.  And  though  Salmon  might  not  know 
the  persons  of  Ellis  and  Kelly  ;  3'et  he  well  knew  that  they  were  brought 
to  the  place  by  his  friend  Blee,  and  were  wholly  under  liis  direction. 

So  widely  do  these  cases  differ ! 

To  conclude,  all  the  prisoners  have  been  guilty  of  a  most  wicked  and 
detestable  conspirac}'  to  render  a  ver^"  salutary  law  subservient  to  their 
vile,  corrupt  views.  But  great  as  their  offence  is,  it  doth  not  amount  to 
felony.  And  therefore  the  judgment  of  the  court  is  that  they  be  all 
discharged  of  this  indictment.-^ 


EGGINGTON'S   CASE. 

Crown  Case  Reserved.     1801. 

[Reported  2  East,  Pleas  of  the  Crown,  666.] 

It  appeared  that  the  prisoners,  intending  to  rob  Mr.  Boulton's  manu- 
factory at  Soho,  had  applied  to  one  Phillips  his  servant,  who  was  em- 
ployed there  as  a  watchman,  to  assist  them  in  the  robbery.  Phillips 
assented  to  the  proposal  of  the  prisoners  in  the  first  instance  ;  but 
immediately  afterwards  gave  information  to  Mr.  Boulton,  the  principal 
proprietor,  and  in  whom  the  property  of  the  goods  taken  (together 
with  other  persons  his  partners)  was  laid  ;  telling  him  what  was  in- 
tended, and  the  manner  and  time  the  prisoners  were  to  come  ;  that 
they  were  to  go  into  the  counting-house,  and  that  he  was  to  open  the 
door  into  the  front  yard  for  them.  In  return,  Mr.  Boulton  told  him  to 
carry  on  the  business  ;  that  he  (Boulton)  would  bear  him  harmless  ; 
and  Mr.  Boulton  also  consented  to  his  opening  the  door  leading  to  the 
front  yard,  and  to  his  being  with  the  prisoners  the  whole  time.  In  con- 
sequence  of  this  information,  Mr.  Boulton  removed  from  the  counting- 
house  everything  but  150  guineas  and  some  silver  ingots,  which  he 
marked  to  furnish  evidence  against  the  prisoners  ;  and  lay  in  Avait  to 
take  them,  when  they  should  have  accomplished  their  purpose.  On  the 
23d  of  December,  about  one  o'clock  in  the  morning,  the  prisoners  came, 
and  Phillips  opened  the  door  into  the  front  yard,  through  which  they 
went  along  the  front  of  the  building,  and  round  into  another  yard 
behind  it,  called  the  middle  yard,  and  from  thence  they  and  Phillips 
went  through  a  door  which  was  left  open,  up  a  staircase  in  the  centre 
building  leading  to  the  counting-house  and  rooms  where  the  plated  busi- 
ness was  carried  on  ;  this  door  the  prisoners  bolted,  and  then  broke  open 

1  See  State  v.  Anone,  2  N.  &  McC.  27;  Alexander  v.  State,  12  Tex.  541.  —  Ed. 


SECT.  II.]  EGGINGTON's   CASE.  185 

the  counting-house  which  was  locked,  and  the  desks,  which  were  also 
locked  ;  and  took  from  thence  the  ingots  of  silver  and  guineas.  They 
then  went  to  the  stoiy  above  into  a  room,  wiiere  the  plated  business 
was  carried  on,  and  broke  tlie  door  open  and  took  from  thence  a  quan- 
tity of  silver,  and  returned  downstairs  ;  when  one  of  them  unbolted 
the  door  at  the  bottom  of  the  stairs  which  had  been  bolted  on  their 
going  in,  and  went  into  the  middle  3'ard ;  where  all  (except  one  who 
escaped)  were  taken  b}'  the  persons  placed  to  watch  them.  On  this 
case  two  points  were  made  for  the  prisoners  :  First,  that  no  felonry  was 
proved,  as  the  whole  was  done  with  the  knowledge  and  assent  of  Mr. 
Boulton,  and  that  the  acts  of  PhilUps  were  his  acts.  Secondl}-,  that  if 
the  facts  proved  amounted  to  a  felony,  it  was  but  a  simple  larceny,  as 
the  building  broke  into  was  not  the  dwelling-house  of  any  of  the  per- 
sons whose  house  it  was  charged  to  be  ;  and  that  there  was  no  break- 
ing, the  door  being  left  open.  After  conviction,  the  case  was  argued 
before  all  the  judges  in  the  Exchequer  Chamber ;  and,  for  the  reasons 
before  stated,  all  the  judges  agreed  that  the  prisoners  were  not  guilty 
of  the  burglary.^ 

But  with  respect  to  the  larcen}  the  majority'  thought  there  was  no 
assent  in  Boulton  ;  that  his  object  being  to  detect  the  prisoners,  he 
only  gave  them  a  greater  facilit}'  to  commit  the  larcen}'  than  they  other- 
wise might  have  had  ;  and  tliat  this  could  no  more  be  considered  as  an 
assent,  than  if  a  man,  knowing  of  the  intent  of  thieves  to  break  into 
his  house,  Avere  not  to  secure  it  with  the  usual  number  of  bolts.  That 
there  was  no  distinguishing  between  the  degrees  of  facility  a  thief  might 
have  given  to  him.  That  it  could  onl}'  be  considered  as  an  apparent 
assent.  That  Boulton  never  meant  that  the  prisoners  should  take  away 
his  property.  And  the  circumstance  of  the  design  originating  with  the 
prisoners,  and  Boulton's  taking  no  step  to  facilitate  or  induce  the  offence 
until  after  it  had  been  thought  of  and  resolved  on  by  them,  formed  with 
some  of  the  judges  a  very  considerable  ingredient  in  the  case  ;  and  dif- 
fered it  much  from  what  it  might  have  been  if  Boulton  had  employed 
his  servant  to  suggest  it  originally  to  the  prisoners.  Lawrence,  J., 
doubted  whether  it  could  be  said  to  be  done  invito  domino,  where  the 
owner  had  directed  his  servant  to  carry  on  the  business,  to  open 
the  door,  and  meant  that  the  prisoners  should  be  encouraged  b}'  the 
presence  of  that  servant ;  and  that  by  his  assistance  they  should  take 
the  goods,  so  as  to  make  a  complete  felon}- ;  though  he  did  not  mean 
that  they  should  carry  them  away.  Finally,  the  prisoners  were  recom- 
mended to  mercy  on  condition  of  being  transported  for  seven  ^-ears, 
the  punishment  the}'  would  have  been  liable  to  for  the  larceny.  The 
decision  in  the  above  case  is  consonant  to  the  rule  laid  down  in  the 
civil  law  under  similar  circumstances."^ 

1  See  State  ;;.  Hayes,  105  Mo.  76, 16  S.  W.  514;  State  v.  Douglass,  44  Kan.  618.  —  Ed. 

2  Vide  Just.  Inst.  lib.  4..  tit.  1,  s.  8. 


186  TOPOLEWSKI   V.    STATE.  [CHAP.  IIL 


TOPOLEWSKI  V.  STATE. 
Supreme  Court  op  Wisconsin.     1906. 

[Reported  109  iV.   W.  1037.] 

The  accused  was  charged  with  having  stolen  three  barrels  of  meat, 
the  property  of  tlie  Plankinton  Packing  Compan}',  of  the  value  of 
$55.20,  and  was  found  guilt}-. 

The  evidence  was  to  this  effect :  The  Plankinton  Packing  Company 
suspected  the  accused  of  having  by  criminal  means  possessed  himself 
of  some  of  its  property,  and  of  having  a  purpose  to  make  further  efforts 
to  that  end.  A  short  time  before  the  14th  day  of  October,  1905,  one 
Mat  Dolan,  who  was  indebted  to  the  accused  in  the  sum  of  upwards  of 
$100,  was  discharged  from  the  company's  employ.  Shortly  theretofore 
the  accused  pressed  Dolan  for  payment  of  the  aforesaid  indebtedness, 
and  the  latter  being  unable  to  respond,  the  former  conceived  the  idea 
of  solving  the  difficulty  by  obtaining  some  of  the  company's  meat  pro- 
ducts through  Dolan's  aid  and  by  criminal  means,  Dolan  to  participate 
in  the  benefits  of  the  transaction  by  having  the  value  of  tlie  property 
credited  upon  his  indebtedness.  A  plan  was  accordingly  laid  by  the 
two  to  that  end,  which  Dolan  disclosed  to  the  company.  Such  plan 
was  abandoned.  Thereafter  various  methods  were  discussed  of  carry- 
ing out  the  idea  of  the  accused,  Dolan  participating  with  the  knowledge 
and  sanction  of  the  compan3^  Finally  a  meeting  was  arranged  between 
Dolan  and  the  accused  to  consider  the  subject,  the  packing  company 
requesting  the  former  to  bring  it  about,  and  with  knowledge  of  Dolan 
causing  one  of  its  employes  to  be  in  hiding  where  he  could  overhear 
whatever  might  be  said,  the  arrangement  being  made  on  the  part  of  the 
company  by  Mr.  La3-er,  the  person  in  charge  of  its  wholesale  depart- 
ment. At  such  interview  the  accused  proposed  that  Dolan  should  pro- 
cure some  packages  of  the  company's  meat  to  be  placed  on  their  loading 
platform,  as  was  customary  in  delivering  meat  to  customers,  and  that 
he  should  drive  to  such  platform,  ostensibly  as  a  customer,  and  remove 
such  packages.  Dolan  agreed  to  the  proposition,  and  it  was  decided 
that  the  same  should  be  consummated  earlj'  the  next  morning,  all  of 
which  was  reported  to  Mr.  Layer.  He  thereupon  caused  four  barrels 
of  meat  to  be  packed  and  put  in  the  accustomed  condition  for  deliver}- 
to  customers,  and  placed  on  the  platform  in  readiness  for  the  accused 
to  take  them.  He  set  a  watch  over  the  property,  and  notified  the  per- 
son in  charge  of  the  platform,  who  was  ignorant  of  the  reason  for  so 
placing  the  barrels,  upon  his  inquiring  what  they  were  placed  there  for, 
to  let  them  go;  that  they  were  for  a  man  who  would  call  for  them. 
About  the  time  appointed  for  the  accused  to  appear,  he  drove  to  the 
platform  and  commenced  putting  the  barrels  in  his  wagon.  The  plat- 
form boss  supposing,  as  the  fact  was,  that  the  accused  was  the  man 


SECT.  II.]  TOPOLEWSKI   V.    STATE.  187 

Mr.  Layer  said  was  to  come  for  the  |)roi)erty,  assumed  tlie  attitude  of 
consenting  to  the  taking.  He  did  not  actually  help  load  the  barrels  on 
to  the  wagon,  but  he  was  b\",  consented  by  his  manner,  and  when  the 
accused  was  ready  to  go,  helped  him  arrange  his  wagon,  and  inquired 
what  was  to  be  done  with  the  fourth  barrel.  The  accused  replied  that 
he  wanted  it  marked  and  sent  up  to  him  with  a  bill.  He  told  the  plat- 
form boss  that  he  ordered  the  stuff  the  night  before  through  Dolan. 
He  took  full  possession  of  the  three  barrels  of  meat  with  intent  to 
deprive  the  owner  permanently  thereof,  and  without  compensating  it 
therefor,  whoU}'  in  ignorance,  however,  of  the  fact  that  Dolan  had 
acted  in  the  matter  on  behalf  of  such  owner,  and  that  it  had  knowingl}' 
aided  in  carrying  out  the  plan  for  obtaining  the  meat. 

Marshall,  J.^  .  .  .  It  was  frankly  conceded  on  the  oral  argument  by 
the  learned  attorne}'  general  that  if  the  plaintiff  in  error  committed  the 
crime  of  larceny,  Dolan,  the  decov  of  the  packing  company,  was  a 
guilty  participant  in  the  matter,  unless  the  element  of  guilt  on  his  part 
was  absent,  because,  while  in  the  transaction  he  acted  ostensibly  as  an 
accomplice  of  the  accused,  his  acts  were  in  fact  those  of  the  packing 
company.  So  in  the  circumstances  characterizing  the  taking  of  the 
barrels  of  meat  from  the  loading  platform  the  case  comes  down  to  this: 
If  a  person  procures  another  to  arrange  with  a  third  person  for  the  lat- 
ter to  consummate,  as  he  supposes,  larceny  of  the  goods  of  such  person 
and  such  third  person  in  the  course  of  negotiations  so  sanctioned  by 
such  person  suggests  the  plan  to  be  followed,  which  is  agreed  upon 
between  the  two,  each  to  be  an  actor  in  the  matter,  and  subsequently 
that  is  sanctioned  secretly  by  such  person,  the  purpose  on  the  part  oi; 
the  latter  being  to  entrap  and  bring  to  justice  one  thought  to  be  dis' 
posed  to  commit  the  offence  of  larceny,  and  such  person  carries  out  n 
part  of  sucii  plan  necessarj'  to  its  consummation  assigned  to  such  other 
in  the  agreement  aforesaid,  such  third  person  not  knowing  that  such 
person  is  advised  of  the  impending  offence,  and  at  the  finality  causei! 
one  of  its  employes  to,  tacith'  at  least,  consent  to  the  taking  of  thti 
goods,  not  knowing  of  the  real  nature  of  the  transaction,  is  such  thirol 
person  guilty  of  the  crime  of  larceny,  or  does  the  conduct  of  such  per- 
son take  from  the  transaction  the  element  of  trespass  or  nonconsent 
essential  to  such  crime? 

It  will  be  noted  that  the  plan  for  depriving  the  packing  company  of 
its  propert}'  originated  with  the  accused,  but  that  it  was  whoUj*  im- 
practicable of  accomplishment  without  the  property  being  placed  on  the 
loading  platform,  and  the  accused  not  being  interfered  with  when  he 
attempted  to  take  it.  When  Dolan  agreed  to  procure  such  placing  the 
packing  company  in  legal  effect  agreed  thereto.  Dolan  did  not  ex- 
pressly consent,  nor  did  the  agreement  he  had  with  the  packing  com- 
pany authorize  him  to  do  so,  to  the  misappropriation  of  the  property'. 
Did  the  agreement  in  legal  effect,  with  the  accused  to  place  the  prop- 

^  -Part  oi  the  opiuiou  is  oiiiittetl.  —  Eu. 


188  TOPOLEWSKI    V.    STATE.  [CHAP.  III. 

erty  of  the  packinjr  c()in|)any  on  lln'  loading  platform,  where  it  eoiild  be 
ap[)ropriated  by  the  accused,  if  he  was  so  disposed  and  was  not  inter- 
fered with  in  so  doing,  though  his  rnovements  in  that  regard  were 
known  to  the  packing  conopany,  and  his  taking  of  the  property,  his 
efforts  to  that  end  being  facilitated  as  suggested,  constitute  consent  to 
such  appropriation  ? 

The  case  is  very  near  the  border  line,  if  not  across  it,  between  con- 
sent and  noncousent  to  the  taking  of  the  property.  Reg.  v.  Lawrence, 
4  Cox  C.  C.  438,  it  was  held  that  if  the  property  was  delivered  by  a 
servant  to  the  defendant  by  the  master's  direction  the  offence  cannot 
be  larceny,  regardless  of  the  purpose  of  the  defendant.  In  this  case 
the  property  was  not  only  placed  on  the  loading  platform,  as  was  usual 
in  delivering  such  goods  to  customers,  with  knowledge  that  the  accused 
would  soon  arrive,  having  a  formed  design  to  take  it,  but  the  packing 
company's  employe  in  charge  of  the  platform,  Ernst  Klotz,  was  In- 
structed that  the  property  was  placed  there  for  a  man  who  would  call 
for  it.  Klotz,  from  such  statement,  had  every  reason  to  infer,  when  the 
accused  arrived  and  claimed  the  right  to  take  the  property,  that  he  was 
the  one  referred  to,  and  that  it  was  proper  to  make  delivery  to  him, 
and  he  acted  accordingly.  While  he  did  not  physically  place  the  prop- 
erty, or  assist  in  doing  so,  in  the  wagon,  his  standing  by,  witnessing 
such  placing  by  the  accused,  and  then  assisting  him  in  arranging  the 
wagon,  as  the  evidence  shows  he  did,  and  taking  the  order,  in  the  usual 
way,  from  the  accused  as  to  the  disposition  of  the  fourth  barrel,  and 
his  conduct  in  respect  thereto,  amounted  practically  to  a  delivery  of  the 
three  barrels  to  the  accused. 

In  Rex  V.  Egginton,  2  P.  &  P.  508,  we  have  a  very  instructive  case 
on  the  subject  under  discussion  here.  A  servant  informed  his  mastei 
that  he  had  been  solicited  to  aid  in  robbing  the  latter's  house.  By  the 
master's  direction  the  servant  opened  the  house,  gave  the  would-be 
thieves  access  thereto,  and  took  them  to  the  place  where  the  intended 
subject  of  the  larceny  had  been  laid  in  order  that  they  might  take  it. 
All  this  was  done  with  a  view  to  the  apprehension  of  the  guilty  parties 
after  the  accomplishment  of  their  purpose.  The  servant,  by  direction 
of  the  master,  not  only  gave  access  to  the  house,  but  afforded  the 
would-be  thieves  every  facility  for  taking  the  property,  and  yet  the 
court  held  that  the  crime  of  larcen}'  was  complete,  because  there  was 
no  direction  to  the  servant  to  deliver  the  propert}-  to  the  intruders  or 
consent  to  their  taking  it.  The}'  were  left  free  to  commit  the  larcenj', 
as  they  had  purposed  doing,  and  the  way  was  made  easy  for  them  to 
do  so,  but  they  were  neither  induced  to  commit  the  crime,  nor  was  any 
act  essential  to  the  offence  done  by  an}'  one  but  themselves. 

In  harmony  with  the  case  last  discussed  in  Williams  v.  State  of 
Georgia,  55  Ga.  391,  cited  by  counsel  for  the  plaintiff  in  error,  it  was 
held  that  the  owner  of  property  may  make  everything  read}'  and  easy 
for  a  larceny  thereof  by  one  purposing  to  steal  the  same,  and  then 


bEGT.  ll.j  TOPOLEWSKI   V.    STATE.  189 

remain  passive,  allowing  the  would-be  criminal  to  perpetrate  the  offence 
of  larcenj-  as  to  every  essential  part  of  such  offence,  without  sacrificing 
the  element  of  trespass  or  nonconsent ;  but  if  one  osteusihl3'  acting  as 
an  accomplice,  but  reall}'  for  the  owner  of  the  property,  fur  the  pur- 
pose of  entrapping  the  would-be  criminal,  does  acts  amounting  to  the 
constituents  of  the  crime  of  larcen\-,  although  the  accused  concurred  in 
and  supposed  he  prompted  the  act,  he  is  not  guilty  of  larceny.  The 
circumstances  of  that  case  were  these :  The  would-be  criminal  when  he 
took  the  property  supposed  he  was  committing  the  offence  of  larcen}', 
and  that  his  associate  was  criminally  participating  therein  ;  but  because, 
as  a  fact,  such  person  was  acting  by  direction  of  the  owner,  and  actually 
placed  the  property  in  the  hands  of  the  taker,  the  element  of  nonconsent 
essential  to  larcen}-  did  not  characterize  the  transaction.  A  distinction 
was  drawn  between  one  person  inducing  another  to  commit  the  crime 
of  larcen}'  of  the  former's  goods,  or  such  person  aiding  in  the  commis- 
sion of  the  offence,  so  far  as  the  mental  attitude  of  such  other  is  con- 
cerned, by  doing  some  act  essential  to  such  an  offence,  and  merely 
setting  a  trap  to  catch  a  would-be  criminal  by  affording  him  the  freest 
opportunit}'  to  commit  the  offence.  The  latter  does  not  sacrifice  the 
element  of  nonconsent.  State  u.  Jansen,  22  Kan.  498  ;  Varner  v.  State 
of  Georgia,  72  Ga.  745  ;  State  v.  Duncan,  8  Rob.  (La.)  562  ;  Reg.  v. 
Williams,  1  Car.  &  K.  195;  Rex  v.  Egginton,  2  B.  &  P.  508. 

In  the  case  before  us,  the  owner  of  the  property,  through  its  agent, 
Dolan,  did  not  suggest  the  plan  for  committing  the  offence  of  larcen}', 
which  was  finally  adopted,  but  the  evidence  shows  conclusively  that, 
by  the  consent  or  direction  of  the  packing  company,  through  words  or 
otherwise,  he  suggested  the  commission  of  such  an  offence,  and  invited 
from  the  accused  plans  to  that  end.  The  fair  construction  of  the  evi- 
dence is  that  in  the  finalit}'  the  plan  was  a  joint  creation  of  the  two, 
and  that  it  required  each  to  be  an  active  participant  in  its  consumma- 
tion. It  seems  that  there  is  good  reason  for  holding  that  the  situation 
in  that  respect  falls  within  the  condemnatory  language  in  the  opinion  of 
the  court  in  Love  v.  People,  160  111.  501,  43  N.  E.  710,  32  L.  R.  A. 
139,  cited  to  our  attention  by  counsel  for  the  plaintiff  in  error.  That 
will  be  apparent  from  the  closing  words  of  the  opinion,  which  are  as 
follows  : 

"  A  contemplated  crime  may  never  be  developed  into  a  consummated 
act.  To  stimulate  unlawful  intentions  for  the  purpose  and  with  the 
motive  of  bringing  them  to  maturity,  so  the  consequent  crime  ma}'  be 
punished,  is  a  dangerous  practice.  It  is  safer  law  and  sounder  morals 
to  hold,  where  one  arranges  to  have  a  crime  committed  against  his 
propert}'  or  himself,  and  knows  that  an  attempt  is  to  be  made  to  en- 
courage others  to  commit  the  act  by  one  acting  in  concert  with  such 
owner,  tliat  no  crime  is  thus  committed.  The  owner  and  his  agent  may 
wait  passively  for  the  would-be  criminal  to  perpetrate  the  offence,  and 
each  and  every  part  of  it,  for  himself,  but  they  must  not  aid,  encourage, 
or  solicit  him  that  they  raaj'  seek  to  punish." 


190  TOPOLEWSKI    V.    STATE.  [CHAP.  III. 

"We  cannot  well  escape  the  conclusion  that  this  case  falls  under  the 
condemnation  of  the  rule  that  where  the  owner  of  property  by  himself 
or  his  agent,  actually  or  constructively,  aids  in  the  commission  of  the 
offence,  as  intended  by  the  wrongdoer,  by  performing  or  rendering 
unnecessary  some  act  in  the  transaction  essential  to  the  offence,  the 
would-be  criminal  is  not  guilty  of  all  the  elements  of  the  offence.  Here 
Mr.  Layer,  acting  for  the  owner  of  the  property,  packed  or  superin- 
tended the  packing  of  the  four  barrels  of  meat,  as  suggested  by  the 
owner's  agent  in  the  matter,  Dolan,  and  caused  the  same  to  be  placed 
on  the  platform,  knowing  that  the  accused  would  soon  arrive  to  take 
them,  under  an  arrangement  between  him  and  its  agent,  and  directed 
its  platform  boss,  when  he  inquired  as  to  the  purpose  of  so  placing  the 
barrels,  "  Let  them  go ;  they  are  for  some  man,  and  he  will  call  for 
them."  He,  from  the  standpoint  of  such  emplo3'e,  directed  the  latter 
to  deliver  the  barrels  to  the  man  when  he  called,  the  same  in  all  re- 
spects as  was  done  in  Williams  v.  State,  supra.  He  substantiall}'  made 
such  deliver^-,  b}^  treating  the  accused  when  he  arrived  upon  the  scene 
us  having  a  right  to  take  the  property.  In  that  the  design  to  trap  a 
criminal  went  a  little  too  far,  at  least,  in  that  it  included  the  doing  of 
an  act,  in  effect  preventing  the  taking  of  the  property  from  being  char- 
acterized by  any  element  of  trespass. 

Tlie  logical  basis  for  the  doctrine  above  discussed  is  that  there  can 
be  no  larceny  without  a  trespass.  So  if  one  procures  his  property  to 
be  taken  b\'  another  intending  to  commit  larcen}',  or  delivers  his  prop- 
erty' to  such  other,  the  latter  purposing  to  commit  such  crime,  the 
element  of  trespass  is  wanting,  and  the  crime  not  fully  consummated, 
however  plain  may  be  the  guilt}-  purpose  of  the  one  possessing  himself 
of  such  property.  That  does  not  militate  against  a  person's  being  free 
to  set  a  trap  to  catch  one  whom  he  suspects  of  an  intention  to  commit 
the  crime  of  larceny,  but  the  setting  of  such  trap  must  not  go  further 
than  to  afford  the  would-be  thief  the  amplest  opportunity  to  carry  out 
his  purpose,  formed  without  such  inducement  on  the  part  of  the  owner 
of  the  property,  as  to  put  him  in  the  position  of  having  consented  to 
the  taking.  If  I  induce  one  to  come  and  take  my  property,  and  then 
place  it  before  him  to  be  taken,  and  he  takes  it  with  criminal  intent,  or 
if  knowing  that  one  intends  to  take  my  property,  I  deliver  it  to  him, 
and  he  takes  it  with  such  intent,  the  essential  element  of  trespass  in- 
volving nonconsent  requisite  to  a  completed  offence  of  larceny  does  not 
characterize  the  transaction,  regardless  of  the  fact  that  the  moral  turpi- 
tude involved  is  no  less  than  it  would  be  if  such  essential  were  present. 
Some  writers  in  treating  this  subject  give  so  much  attention  to  con- 
demning the  deception  practiced  to  facilitate  and  encourage  the  com- 
mission of  a  crime  by  one  supposed  to  have  such  a  purpose  in  view, 
that  the  condemnation  is  liable  to  be  viewed  as  if  the  deception  were 
sufficient  to  excuse  the  would-be  criminal,  or  to  preclude  his  being 
prosecuted  ;  that  there  is  a  question  of  good  morals  involved  as  to  both 


SECT.  II.]  TOPOLEWSKI   V.    STATE.  •  191 

parties  to  the  transaction,  and  that  the  wrongful  participation  of  the 
owner  of  the  property  renders  him  and  the  public  incapable  of  being 
heard  to  charge  the  person  he  has  entrapped  with  the  offence  of  larcen}'. 
That  is  wrong.  It  is  the  removal  from  the  completed  transaction,  which 
from  the  mental  attitude  of  the  would-be  criminal  ma\'  have  all  the  in- 
gredients of  larcen}',  from  the  standpoint  of  the  owner  of  the  property 
of  the  element  of  trespass  or  nonconsent.  When  such  element  does 
not  characterize  a  transaction  involving  the  full  offence  of  larceny,  so 
far  as  concerns  the  mental  purpose  of  such  would-be  criminal  is  con- 
cerned, is  often  not  free  from  difficult}',  and  courts  of  review  should 
incline  quite  strong!}-  to  support  the  decision  of  the  trial  judge  in  re- 
spect to  the  matter,  and  not  disturb  it  except  in  a  clear  case.  It  seems 
that  there  is  such  a  case  before  us. 

If  the  accused  had  merel}'  disclosed  to  Dolan,  his  ostensible  accom- 
plice, a  purpose  to  improve  the  opportunity  when  one  should  present 
itself  to  steal  barrels  of  meat  from  the  packing  company's  loading  plat- 
form, and  that  had  been  communicated  by  Dolan  to  the  company,  and 
it  had  then  merel}'  furnished  the  accused  the  opportunity  he  was  look- 
ing for  to  carry  out  such  purpose,  and  he  had  improved  it,  the  situation 
would  be  quite  different.  The  mere  fact  that  the  plan  for  obtaining 
the  property  was  that  of  the  accused,  under  the  circumstances  of  this 
case,  is  not  controlling.  Dolan,  as  an  emissary  of  the  packing  company, 
as  we  have  seen,  was  sent  to  the  accused  to  arrange,  if  the  latter  were 
so  disposed,  some  sort  of  a  plan  for  taking  some  of  the  compan3''s  prop- 
erty' with  the  intention  of  stealing  it.  Though  the  accused  proposed  the 
plan,  Dolan  agreed  to  it,  which  involved  a  promise  to  assist  in  carrying 
it  out,  ostensibly  as  an  accomplice,  but  actually  as  an  instrument  of  the 
packing  company.  That  came  verv  near,  if  it  did  not  involve,  solicita- 
tion by  the  company,  in  a  secret  way,  for  the  accused  to  take  its  prop- 
erty as  proposed.  "With  the  other  element  added  of  placing  such 
property  on  the  loading  platform  for  the  accused  to  take  pursuant  to 
the  agreement,  with  directions,  in  effect,  to  the  person  in  charge  of  the 
platform,  to  let  the  accused  take  it  when  he  came  for  that  purpose,  we 
are  unable  to  see  any  element  of  trespass  in  the  taking  which  followed. 
The  packing  company  went  very  significantl}'  further  than  the  owner 
of  the  property  did  in  Rex  v.  Egginton,  s^qjra,  which  is  regarded  as 
quite  an  extreme  case.  It  solicited  the  opportunity  to  be  an  ostensible 
accomplice  in  committing  the  offence  of  larceny  instead  of  being  solic- 
ited in  that  regard,  and  the  property  was  in  practical  effect  delivered 
to  the  would-be  thief  instead  of  its  being  merely  placed  where  he  could 
readily  trespass  upon  the  rights  of  the  packing  company  by  taking  it. 
When  one  keeps  in  mind  the  plain  distinction  between  merely  furnish- 
ing opportunity  for  the  execution  of  a  formed  design  to  commit  larceny 
and  negotiations  for  the  purpose  of  develojiing  a  scheme  to  commit  the 
offence,  regardless  of  who  finally  proposes  the  plan  jointl}^  adopted,  and 
not  facilitating  the  execution  of  the  plan  b}-  placing  tlie  property  pur- 


192  REGINA   V.   CASE.  [CHAP.  IIL 

suant  to  the  arrangement  where  it  can  readily  be  taken,  but  in  practical 
effect,  at  least,  delivering  the  same  into  the  possession  of  the  would-be 
lliief,  one  can  readily  see  that  the  element  of  trespass,  involving  consent, 
is  present  in  the  first  situation  mentioned,  and  not  in  the  last,  and  that 
the  latter  prett}'  clearly  fits  the  circumstances  of  this  case. 

The  judgment  is  reversed^  and  the  cause  remanded  for  a  new  trial. 


SECTION   III. 

Consent  of  the  Injured  Party. 

REGINA  V.  CASE. 

Crown  Case  Reserved.     1850. 

[Reported  4  Cox  C.  C.  220.] 

The  following  ease  was  reserved  by  the  Recorder  of  Dover: 
William  Case  was  tried  before  me  at  the  last  April  Quarter  Sessions 
for  the  borough  of  Dover,  for  an  assault  upon  Mary  Impitt. 

The  defendant  was  a  medical  practitioner.  Mary  Impitt,  who  was 
fourteen  years  old,  was  placed  under  his  professional  care  b}'  her 
parents,  in  consequence  of  illness,  arising  from  suppressed  menstrua- 
tion ;  and  on  the  occasion  of  her  going  to  his  house,  and  informing  him 
she  was  no  better,  he  observed,  "  Then  I  must  try  further  means  with 
you."  He  then  took  hold  of  her,  and  laid  her  down  in  his  surgery, 
lifted  up  her  clothes,  and  had  carnal  connection  with  her,  she  making 
no  resistance,  believing  (as  she  stated)  that  she  was  submitting  to 
medical  treatment  for  the  ailment  under  which  she  labored.  The  de- 
fendant's counsel,  in  his  address  to  the  jurv,  contended  that  the  girl 
was  a  consenting  party  ;  therefore,  that  the  charge  of  assault  could  not 
be  sustained. 

I  told  the  jur}'  that  the  girl  was  of  an  age  to  consent  to  a  man  having 
carnal  connection  with  her,  and  that  if  they  thought  she  consented  to 
such  connection  with  the  defendant  he  ought  to  be  acquitted  ;  but  that 
if  they  were  satisfied  she  was  ignorant  of  the  nature  of  the  defendant's 
act,  and  made  no  resistance,  solel}^  from  a  bond  fide  belief  that  the 
defendant  was  (as  he  represented)  treating  her  medicall}',  with  a  view 
to  her  cure,  his  conduct,  in  point  of  law,  amounted  to  an  assault. 

The  jury  found  the  defendant  guiltv.  and  he  was  sentenced  to  be 
imprisoned  for  eighteen  calendar  months  in  the  borough  gaol,  where  he 
now  remains.     I  have  to  praj'  the  judgment  of  my  lords,  justices,  and 


SECT.  III.]  KEGINA   V.   CASE.  193 

Others,  sitting  in  a  court  of  appeal,  whether  my  direction  to  the  jury 
was  correct  in  point  of  law. 

Jlorn,  for  the  prisoner.      The  consent  of  the  girl  is  found  ;  for  con- 
senting and  not  resisting  are  synonymous.     [Coleuidge,  J.  — They  are 
clearly  used  in  a  different  sense  here.     Wilde,  C.  J.  —  If  a  medical 
man  uses  an  injurious  ointment  the  patient  does  not  resist  its  applica- 
tion ;  but  it  cannot  be  said  that  he  consents.     Alderson,  B.  —  How 
does  this  differ  from  the  case  of  a  man  pretending  to  be  the  husband  of 
the  woman  ?]     Fraud  is  not  expressly  found  in  this  case.     It  ought  to 
have  been  left  to  the  jury  expressly  to  say  whether  tlie  act  done  was 
necessary  or  proper.     It  is  consistent  with  the  verdict  that  he  may  have 
treated  her  medically.     [Aldeeson,  B.  —  He  pretended  that  that  was 
medicine  which  was  not ;  hereby  that  is  fraud.]     In  the  notes  to  R. 
V.  Read  (1  Den.  C.  C.  379),  it  is  said,   "It  seems  from  R.  v.  Martin 
(2  Moo.  C.  C.  123  ;  9  Car.  &  P.  213)  ;  R.  v.  Banks  (8  Car.  &  P.  574)  ; 
R.  /'.  Meredith  (8  Car.  &  P.  589),  first,  that  the  stat.  9  Geo.  4,  c.  31, 
s.  17,  does  not  deprive  a  girl  under  ten  years  of  age  of  the  power  to 
consent  which  she  had  at  common  law  ;  secondly,  that  consequently  if 
she  consents  to  the  mere  incomplete  attempt,  such  an  attempt  is  not 
punishable  as  an  assault ;  thirdly,  that  it  is  punishable  as  an  attempt 
to  commit  a  felony,  viz.,  as  a  misdemeanor ;  "  and  farther,  "  an  assault 
seems  to  be  any  sort  of  personal  ill-usage,  short  of  a  battery  done  to 
another  against  his  consent.     Therefore,  such  act,  done  with  consent, 
is  no  breach  of  the  peace  or  crime."     Children  of  tender  age  are,  there- 
fore, capable  of  consenting;  so  is  an  idiot  (R.  v.  Ryan,  2  Cox  C.  C. 
115).     [Patteson,  J.  —  What  do  you  say  the  jury  found?]     It  is  con- 
sistent with   the   verdict   that  he   may   have   treated   her   medically. 
[Coleridge,  J. —  Suppose  even  that  he  did  the  act  botici  fide  for  the 
purpose  which  he  pretended,  would  that  justify  him?     Had  he  a  right 
to  pollute  the  child's  body  ?]     Certainly  not,  morally  ;  but  the  question 
is,  was  it  an  assault  in  the  eye  of  the  law,  there  being  consent  in  fact. 
[Platt,  B.  —  The  girl  did  not  consent  to  that  which  was  done.     She 
did  not  know  the  nature  of  the  act.]     In  Read's  case  (I  Den.  C.  C.  377), 
the  jury  found  that,  from  her  tender  years,  the  child  did  not  know 
what  she  was  about.     Yet,  as  they  found  that  she  assented,  the  prison- 
ers  were   held  entitled  to   an   acquittal  upon   the  indictment,   which 
charged  them  with  an  assault.     [Alderson,  B.  —  It  must  be  taken  that 
tliere  was  actual  consent  in  that  case.]     Even  if  fraud  was  established, 
still  there  was  no  assault.     The  doctrine  of  rape  per  frcmdem  stands 
upon  the  decision  of  two  judges,  Alderson,  B.  and  Gurney,  B.,  in  R.  v. 
Williams  (8  Car.  &  P.  286),  and  R.  v.  Saunders  {ib.  265).   In  those  cases 
the  defendants  were  indicted  for  rape,  and  it  appearing  that  the  con- 
sent of  the  woman  in  each  case  had  been  obtained  under  the  belief  that 
the  man  was  her  husband,  the  learned  judges  directed  that  the  prison- 
ers should   be  acquitted  of  the   charge  of  rape,   but  convicted  of  an 
assault.     [Alderson,  B.  — In  the  case  before  me  I  followed  several 
previous  decisions,  although  I  doubted  them.]     If  they  were  guilty  of 


194  REGINA.    V.    CASE.  [CHAP.  III. 

an  assault,  and  penetration  was  proved,  why  were  they  not  guilty  of 
rape  ?  [Alderson,  B.  —  Suppose  a  woman  is  ravished  whilst  under  the 
influence  of  laudanum.  I  recollect  a  case  before  me  on  the  Home  Cir- 
cuit, where,  at  the  time  when  the  offence  was  committed,  the  woman 
was  completel}'  insensible  from  drunkenness.  I  doubted  whether  the 
prisoner  ought  to  be  convicted  of  rape  ;  but  upon  consultation  witli  Lord 
Denman  I  held  that  he  might.]  R.  v.  Camplin  (1  Den.  C.  C.  89  ;  1 
Cox  C.  C.  220),  was  a  somewhat  similar  case,  but  diffei'ent  in  this, — 
that  the  prisoner  gave  the  woman  the  liquor  which  made  her  drunk. 
He  therefore  contributed  to  the  production  of  the  state  of  insonsiliility 
during  which  the  offence  was  committed  ;  and  if  the  woman  does  not 
consent  as  long  as  she  has  the  power  of  consenting  or  resisting,  a 
reasonable  inference  that  she  did  not  consent  may  be  drawn  from  her 
previous  conduct ;  the  act  would  be  done  against  "  her  peimanent  will," 
as  Lord  Denman  expressed  it  in  R.  v.  Camplin  ;  but  if  fraud  dispenses 
with  the  necessity'  of  resistance,  any  deceit  will  have  tliat  effect ;  and  it 
would  be  an  assault  if  the  woman  consented,  upon  a  false  representa- 
tion that  the  man  would  marry  her,  or  that  medically  it  would  be  bene- 
ficial to  her.  If  a  surgeon  cuts  off  a  leg  or  draws  a  tooth,  and  the 
patient  consents  because  he  believes  that  he  is  being  medically  treated, 
could  he  afterwards  indict  him  for  an  assault?  Again,  the  charge  of 
7ape  includes  an  assault ;  and  is  there  to  be  one  kind  of  consent  for  an 
assault  and  another  kind  of  consent  to  get  rid  of  the  charge  of  rape? 
The  cases,  therefore,  it  is  submitted,  deserve  to  be  reconsidered. 
[Wilde,  C.  J.  —  There  are  two  cases  which  clearl}'  show  that  this  de- 
fendant was  guilty-  of  an  assault,  and  j'ou  sa}'  that  the  court  ought  to 
have  held  him  guilt}'  of  rape  ;  but  it  would  not  be  less  an  assault  if  it 
should  be  held  to  be  rape.]  If  upon  an  indictment  for  assault  a  rape  is 
proved,  the  misdemeanor  merges  in  the  felony  ;  but  it  is  held  that  if 
the  connection  takes  place  by  consent  obtained  by  fraud  it  is  not  rape. 
If  not,  neither  is  it  an  assault. 

JBarroio,  contra,  was  not  called  upon. 

Wilde,  C.  J.  I  have  no  doubt  in  this  case  that  the  direction  of  the 
learned  recorder  was  perfectly  correct.  The  objection  is  to  the  latter 
part  of  the  charge  ;  for  he  first  of  all  tells  the  jury  that  the  girl  was  of 
an  age  to  consent,  and  that,  if  she  consented,  the  prisoner  must  be 
acquitted.  Therefore,  he  treats  her  as  competent  to  consent,  and  her 
consent  as  a  ground  of  acquittal ;  but  then,  that  direction  is  qualified 
by  what  he  adds  afterwards,  —  that  if  they  were  satisfied  that  she  was 
ignorant  of  the  nature  of  the  act,  and  made  no  resistance  solely  from  a 
bond  fide  belief  that  the  defendant  was,  as  he  represented,  treating  her 
medicall}'  with  a  view  to  her  cure,  his  conduct  amounted  to  an  assault. 
That  is  the  part  which  is  objected  to.  The  jurj'  found  the  prisoner 
guilt}'.  The  girl  was  of  an  age  at  which  she  might  be  totally  ignorant 
of  the  nature  of  the  act,  morally  or  religiously,  and  of  the  eflTect  which 
it  might  have  upon  her  character  and  station  in  life  ;  and  she  was  sent 
by  her  parents  to  the  defendant  to  be  medically  treated  b}'  him.     It  is 


SECT.  III.J  REGINA  V.    CASR.  195 

said  that  he  may  have  treated  her  medically ;  if  so,  can  it  be  said  that 
he  did  not  commit  both  a  legal  and  ecclesiastical  offence?  But  the  jury 
must,  I  tliink,  be  taken  to  have  found  that  it  was  not  medical  treatment. 
I  admit  that  the  question  was  not  put  to  them  ;  nor  was  it  necessary, 
because,  whether  the  defendant  thought  it  would  be  liencfieial  or  not, 
his  act  was  altogether  improper  and  unjustifiable.  He  was  guilty  of  a 
great  offence.  He  in  truth  disarms  the  girl ;  and  she  submits  under 
a  misrepresentation  that  it  was  some  act  necessary  and  proper  for  her 
cure  ;  she  made  no  resistance  to  an  act  which  she  supposed  to  be  quite 
different  from  what  it  was  ;  what  she  consented  to  was  something 
wholly  different  from  that  which  was  done,  and,  therefore,  that  which 
was  done,  was  done  without  her  consent.  I  am  not  prepared  to  say 
that  the  two  cases  referred  to  might  not  be  cases  of  rape  ;  for  every 
rape  includes  an  assault ;  but  it  is  not  necessary  to  decide  that  ques- 
tion now. 

Alderson,  B.  This  is  quite  undistinguishable  from  the  two  cases 
decided  by  myself  and  niy  brother  Gurney,  which  were  only  the  sequel 
of  many  others  previously  decided.  When  a  man  obtains  possession  of 
the  person  of  a  woman  by  fraud,  it  is  against  her  will ;  and  if  the 
question  were  res  nova,  I  should  be  disposed  to  say  that  this  was  a 
rape,  but  that  is  not  necessary  in  this  case.  This  is  an  indictment  for 
an  assault,  and  the  prisoner  obtains  the  consent  of  the  child  by 
representing  the  act  as  something  different  from  what  it  was. 

Patteson,  J.  Mr.  Horn  confounds  active  consent  and  passive  non- 
resistance,  which,  I  think,  the  learned  recorder  has  very  accurately 
distinguished.  Here  the  girl  did  not  resist ;  but  still  there  was  no 
consent. 

Coleridge,  J.  The  girl  was  under  medical  treatment,  and  she 
makes  no  resistance  only  in  consequence  of  the  confidence  which  she 
reposed  in  the  defendant  as  her  medical  adviser.  If  there  had  been  no 
consent  the  defendant's  act  would  have  been  indisputably  an  assault ; 
and  under  the  circumstance,  therefore,  his  conduct  amounted  to  an 
assault  according  to  cases  which  I  should  be  sorry  to  see  infringed. 

Platt,  B,  I  think  my  brother  Patteson  has  pointed  out  the  fallacy 
of  Mr.  Horn's  argument  as  to  consent.  The  girl  consents  to  one  thing, 
and  the  defendant  does  another ;  that  other  involving  an  assault.^ 

Conviction  affirmed. 

1  Arc.  Rex  V.  Nichols,  Russ.  &  Ry.  130;  Rex  v.  Rosinski,  1  Moody,  19;  Reg.  v. 
Woodhurst,  12  Cox  C.  C.  443  ;  Reg.  v.  Lock,  L.  R.  2  C.  C.  R.  10.  —  Ed. 


J.96  REGINA   V.   CLARENCE.  [CHAP.  III. 


REGINA   V.  CLARENCE. 

Crown  Case  Reserved.     1888. 

[Reported  16  Cox  C.  C.  511,  22  Q.  B.  D.  23.] 

Wills,  J.,^  read  the  following  judgment:  The  prisoner  in  this 
case  has  been  convicted  (1)  of  "■  an  assault"  upon  his  wife,  "  occasion- 
ing actual  bodily  harm,"  under  sect.  24  &  25  Vict.  c.  100,  s.  47  ;  and 
(2)  of  "unlawfully  and  maliciously  inflicting"  upon  her  "grievous 
bodily  harm  "  under  sect.  20  of  the  same  statute.  The  facts  are  that 
he  was,  to  his  knowledge,  sutfering  from  gonorrhoea ;  that  he  had 
marital  intercourse  with  his  wife  without  informing  her  of  the  fact ; 
that  he  infected  her,  and  that  from  such  infection  she  suffered  grievous 
bodily  harm.  The  question  is,  whether  he  was  righth'  convicted  upon 
either  count.  First,  was  he  guilty  of  an  assault?  In  support  of  a 
conviction  it  is  urged  that  even  a  married  woman  is  under  no  obliga- 
tion to  consent  to  intercourse  with  a  diseased  husband  ;  that  had  the 
wife  known  tliat  her  husband  was  diseased  she  would  not  have  con- 
sented ;  that  the  husband  was  guilt}'  of  a  fraud  in  concealing  the  fact 
of  his  illnoss  ;  that  her  consent  was  therefore  obtained  b}-  fraud,  and 
was  therefore  no  consent  at  all,  and,  as  the  act  of  coition  would  impl}' 
an  assault  if  done  without  consent,  he  can  be  convicted.  This  reason- 
ing seems  to  me  eminentl}'  unsatisfactoiy.  That  consent  obtained  b}' 
fraud  is  no  consent  at  all  is  not  true  as  a  general  proposition  either  in 
fact  or  in  law.  If  a  man  meets  a  woman  in  the  street  and  knowingly 
gives  her  bad  money  in  order  to  procure  her  consent  to  intercourse 
with  him,  he  obtains  her  consent  by  fraud,  but  it  would  be  childish  to 
say  that  she  did  not  consent.  In  respect  of  a  contract,  fraud  does  not 
destroy  the  consent ;  it  oul}'  makes  it  revocable.  Money  or  goods 
obtained  by  false  pretences  still  become  the  property'  of  the  fraudulent 
obtainer  unless  and  until  the  contract  is  revoked  by  the  person  de- 
frauded, and  it  has  never  been  held  that,  as  far  as  regards  the  applica- 
tion of  the  criminal  law,  the  repudiation  of  the  contract  had  a 
retrospective  effect,  or  there  would  have  been  no  distinction  between 
obtaining  money  under  false  pretences  and  theft.  A  second  and  far 
more  effective  way  of  stating  the  argument,  however,  is  that  connection 
with  a  diseased  man  and  connection  with  a  sound  man  are  things  so 
essentially  different  that  the  wife's  submission  without  knowledge  of 
the  facts  is  no  consent  at  all.  It  is  said  that  such  a  case  rests  upon 
the  same  footing  with  the  consent  to  a  supposed  surgical  operation  or 
to  connection  with  a  man  erroneouslj'  supposed  to  be  the  woman's 
husband.  In  the  latter  case  there  has  been  great  difference  of  judicial 
^  Part  of  each  opinion,  not  involving  the  question  of  assault,  is  omitted. 


SECT.  IK,]  REGINA    V.    CLARENCE.  197 

Opinion  as  to  whether  it  did  or  did  not  amount  to  the  crime  of  rape ; 
but  as  it  certainly  would  now  be  rape  b\'  virtue  of  the  Criminal  Law 
Amendment  Act,  1885  (48  &  49  Vict.  c.  69),  s.  4,  I  treat  it  as  so  set- 
tled. A  third  way  of  putting  the  case  is,  that  inasmuch  as  the  act 
done  amounts  to  legal  cruelty  according  to  the  doctrines  formerly  of 
the  Ecclesiastical  Courts,  and  now  of  the  Divorce  Court,  it  cannot  be 
said  to  be  within  the  consent  implied  by  the  marital  relation.  These 
different  ways  of  putting  the  argument  in  favor  of  a  conviction  have 
some  important  differences.  According  to  each  the  consent  of  the 
marital  relation  does  not  apply  to  the  thing  done,  —  a  fact  as  to  which 
there  does  not  seem  to  be  room  for  doubt,  and  according  to  each  the 
want  of  it  makes  the  transaction  an  assault.  According  to  the  first,  it 
is  the  fraudulent  suppression  of  the  truth  which  destroys  the  consent 
de  facto  given,  a  proposition  involving  as  a  necessar}'  element  in  the 
offence  the  knowledge  of  his  condition  on  the  part  of  the  offender. 
According  to  the  second,  it  is  the  difference  between  the  thing  sup- 
posed to  be  done  and  the  thing  actually  done  that  negatives  the  idea 
of  consent  at  all,  and  in  that  view  it  must  be  immaterial  whether  the 
offender  knew  that  he  was  ill  or  not.  According  to  the  third,  his 
knowledge  is  material,  not  on  the  ground  of  fraudulent  misrepresenta- 
tion, but  because  it  is  an  element  in  legal  cruelty  as  that  term  is  under- 
stood in  the  Divorce  Court.  It  makes  a  great  difference  upon  which 
of  these  grounds  a  conviction  is  supported.  Each  of  them  covers  an 
area  vastly  greater  than  the  ground  occupied  by  the  circumstances  of 
the  present  case.  If  the  first  view  be  correct,  every  man,  as  has  been 
pointed  out,  who  knowingly  gives  a  piece  of  bad  money  to  a  prostitute 
to  procure  her  consent  to  intercourse,  or  who  seduces  a  woman  by 
representing  himself  to  be  what  he  is  not,  is  guilty  of  assault,  and,  as 
it  seems  to  me,  therefore,  of  rape.  If  the  second  view  be  correct,  it 
applies  in  similar  events  just  as  much  to  unmarried  as  to  married 
people,  unless  the  circumstances  should  establish  that  the  parties  were 
content  to  take  their  chances  as  to  their  respective  states  of  health  ; 
and  the  allegation  that  a  man  had  given  an  assurance  to  a  prostitute 
before  having  intercourse  with  her  that  he  was  sound  when  he  was  not 
so  in  fact,  might  be  a  ground  for  putting  him  upon  a  trial  for  rape.  If 
the  third  view  be  correct,  it  places  the  married  man,  in  the  eye  of  the 
criminal  law,  in  a  much  worse  position  than  the  unmarried,  and  makes 
him  guilty  of  an  assault,  and  possibly  of  rape,  when  an  unmarried  man 
would  not  be  liable  to  the  same  consequences.  It  may  be  said  that, 
from  the  moral  point  of  view,  his  case  is  the  worse  ;  but  there  are  two 
sides  to  this  as  to  most  other  questions.  The  man  who  goes  out  of  his 
way  to  seek  intercourse  under  such  circumstances  —  and,  be  it  remem- 
bered that  the  hypothesis  I  am  now  dealing  with  assumes  knowledge  of 
his  condition  on  the  part  of  the  man  —  is  without  excuse.  There  may 
be  many  excuses  for  the  married  man  suggested  b}'  the  modes  of  life 
with  which  poverty  and  overcrowding  have  to  do.  We  are  thus  intro- 
duced, as  it  seems  to  me,  to  a  set  of  very  subtle  metaphysical  questions. 


198  REGINA   V.    CLARENCE.  [CHAP.  III. 

If  we  are  invited  to  apply  the  analog}'  of  the  cases  in  which  a  man  has 
procured  intercourse  b}'  personating  a  husband,  or  bj-  representing  that 
he  was  performing  a  surgical  operation,  we  have  to  ask  ourselves 
whether  the  procurement  of  intercourse  b}'  suppressing  the  fact  that 
the  man  is  diseased  is  more  nearlj-  allied  to  the  procurement  of  inter- 
course b}'  misrepresentation  as  to  who  the  man  is,  or  as  to  what  is 
being  done,  or  to  misrepresentations  of  a  thousand  kinds  in  respect  of 
which  it  has  never  ^-et  occurred  to  any  one  to  suggest  that  intercourse 
so  procured  was  an  assault  or  a  rape.  There  are  plenty  of  such  in- 
stances in  which  the  knowledge  of  the  truth  would  have  made  the 
victim  as  ready  to  accept  the  embraces  of  a  man  stricken  with  small- 
pox or  lepros}'.  Take,  for  example,  the  case  of  a  man  without  a 
single  good  quality,  a  gaol-bird,  heartless,  mean,  and  cruel,  without 
the  smallest  intention  of  doing  anything  but  possessing  himself  of  the 
person  of  his  victim,  but  successfull}'  representing  himself  as  a  man  ot 
good  famil}'  and  connections  prevented  b}'  some  temporar}'  obstacle 
from  contracting  an  immediate  marriage,  and  with  conscious  h3'pocrisy 
acting  the  part  of  a  devoted  lover,  and  in  this  fashion,  or  perhaps  under 
the  guise  of  affected  religious  fervor,  effecting  the  ruin  of  his  victim. 
In  all  that  induces  consent  there  is  not  less  difference  between  the  man 
to  whom  the  woman  supposes  she  is  yielding  herself  and  the  man  b}' 
whom  she  is  real!}'  betrayed,  than  there  is  between  the  man  bodily 
sound  and  the  man  afflicted  with  a  contagious  disease.  Is  there  to  be 
a  distinction  in  this  respect  between  an  act  of  intercourse  with  a  wife 
who  on  this  special  occasion  would  have  had  a  right  to  refuse  hei-  con- 
sent, and  certainh'  would  have  refused  it  had  she  known  the  truth,  and 
the  intercourse  taking  place  under  the  general  consent  inferred  from 
a  bigamous  marriage  obtained  by  the  false  representation  that  the  man 
was  capable  of  contracting  a  legal  marriage?  In  such  a  case  the  man 
can  give  no  title  of  wife  to  the  woman  whose  person  he  obtains  by  the 
false  representation  that  he  is  unmarried,  and  by  a  ceremony  which, 
under  the  circumstances,  is  absolutely  void.  Where  is  the  difference 
between  consent  obtained  by  the  suppression  of  the  fact  that  the  act  of 
intercourse  vas^y  produce  a  foul  disease,  and  consent  obtained  b}'  the 
suppression  of  the  fact  that  it  will  certainlv  make  the  woman  a  concu- 
aine,  and  while  destroying  her  status  as  a  virgin  withhold  from  her  the 
dtle  and  rights  of  a  wife?  Where  is  the  distinction  between  the  mis- 
take of  fact  which  induces  the  woman  to  consent  to  intercourse  with  a 
man  supposed  to  be  sound  in  bod}',  but  not  really  so,  and  the  mistake 
of  fact  which  induces  her  to  consent  to  intercourse  with  a  man  whom 
she  believes  to  be  her  lawful  husband,  but  who  is  none  ?  Man}'  women 
would  think  that,  of  two  cruel  wrongs,  the  bigamist  had  committed  the 
worse.  These  are  but  specimens  of  the  questions  which  must  be  faced 
before  the  circumstances  of  the  present  case  can  be  pronounced  to 
constitute  an  assault ;  and  such  considerations  lead  one  to  pause  on 


SECT.  Ill,]  REGINA    V.    CLA.RENCE.  199 

the  threshold  and  inquire  whether  the  enactment  under  consideration 
could  reall}'  have  been  intended  to  apply  to  circumstances  so  com- 
pletely removed  from  those  \j-hich  are  usually  understood  w^hen  an 
assault  is  spoken  of,  or  to  deal  with  matters  of  an}^  kind  involving  the 
sexual  relation  or  act.  The  description  of  the  offence  constituted  by 
sect.  47  is  as  follows:  "Whoever  shall  be  convicted  of  an  assault 
occasioning  actual  bodily  harm."  The  section  is  the  last  of  a  group  of 
twelve  headed  "Assaults."  None  of  them  except  sect.  43  implies 
that  an}'  distinction  between  males  and  females  is  thought  of,  and  that 
section  points  to  nothing  of  a  sexual  character.  It  merelj-  provides 
that  in  cases  of  assault  upon  males  under  fourteen  and  upon  females 
generall}',  if  the  assault  or  batteiy  is  of  such  an  aggravated  character 
that  it  cannot  in  the  opinion  of  the  justices  be  sufficientl}-  punished  as  a 
common  assault  or  batter}',  it  shall  be  lawful  for  them  to  inflict  a  heavier 
punishment.  Indecent  assaults,  as  such,  upon  females  are  dealt  witli 
b}'  sect.  52,  and  upon  males  by  sect.  62,  and  there  is  therefore  no 
ground  for  supposing  that  anything  specially  between  the  sexes  is 
pointed  at  either  b}-  this  section,  or  by  an}'  of  those  in  the  group  to 
which  it  belongs.  The  next  group  of  eight  sections  (48-55)  is  headed 
"Rape,  abduction,  or  defilement  of  women,"  and  deals  specially  with 
sexual  crimes.  Surely  this  was  the  place  in  which  to  find  an  enact- 
ment dealing  with,  the  very  peculiar  circumstances  now  before  us,  and 
it  cannot  really  have  been  intended  that  tiiey  should  be  embraced  by  a 
section  whose  terms  are  applicable  to,  and  as  it  seems  to  me  satisfied 
by,  the  class  of  cases  which  would  naturally  occur  to  one's  mind,  those 
of  direct  violence.  The  worst  of  the  contagious  diseases  of  this  class 
has,  I  believe,  been  known  m  this  country  for  close  upon  four  centuries. 
The  circumstances  which  have  happened  in  this  case  cannot  have  been 
of  infrequent  occurrence  during  that  interval,  and  cannot  have  failed 
justly  to  give  rise  to  the  bitterest  resentment.  It  seems  to  my  mind  a 
very  cogent  argument  against  the  conviction  that,  if  the  view  of  the 
law  upon  which  it  is  founded  be  correct,  thousands  of  offending  hus- 
bands, and  as  I  think  also  of  offending  wives,  must  have  rendered 
themselves  amenable  to  the  criminal  law  ;  and  yet  it  was  reserved  for 
the  year  1866,  when  Reg.  v.  Bennett  (4  F.  &  F.  1105)  was  decided,  to 
discover  that  such  transgressors  might  have  been  indicted  and  crimi- 
nally dealt  with  during  all  that  long  period.  It  is  true  that  women  take 
a  diflferent  place  in  social  position,  and  have  by  Act  of  Parliament 
many  rights  and  by  common  usage  much  social  liberty  which  no  one 
would  have  claimed  for  them  centuries  ago.  This  fact,  however,  seems 
to  me  a  strangely  insufficient  reason  for  a  new  reading  of  the  criminal 
law  fraught  Math  consequences  which  no  one  can  deny  to  be  of  a  very 
serious  and  widespread  character.  The  principle  upon  which  a  convic- 
tion in  this  case  must  be  upheld  will  or  will  not  apply  to  the  intercourse 
of  unmarried,  as  well  as  of  married,  men  and  women,  according  to  the 
ground  or  grounds  selected  upon  which  to  justify  it.     If  it  is  based 


200  KEGINA  V.    CLAKENCE.  [CHAP.  III. 

upon  the  notion  of  cruelty  as  understood  in  the  Divorce  Court,  the 
case  of  the  unmarried  man  and  woman  falls  without  its  purview.     If 
suppression  of  the  truth  be  a  material'  element  in  the  inquiry,  actual 
misrepresentation  on  the  subject  of  health  would  put  an   unmarried 
man  or  woman  in  the  same  position  as  the  married  man  or  woman 
who  conceals  that  fact  against  which  the  married  state  ought  to  be  a 
sufficient  guarantee.     I  intentionally  refer  to  women  as  well  as  men, 
for  it  is  a  great  mistake  to  look  at  questions  of  this  kind  as  if  sexual 
faults  and  transgressions  were  all  on  the  side  of  one  sex.     The  unmar- 
ried woman  who  solicits  and  tempts  a  perhaps  reluctant  man  to  inter- 
course which  he  would  avoid  like  death  itself  if  he  knew  the  truth  as  to 
her  health,  must  surely,  under  some  circumstances  at  least,  come  under 
the  same  criminal  liability  as  the  same  man.     If,  again,  the  conviction 
be  upheld  on  the  ground  of  the  difference  between  the  thing  consented 
to  and  the  thing  done,  the  principle  will  extend  to  many,  perhaps  most, 
cases  of  seduction  and  to  other  forms  of  illicit  intercourse,  including  at 
least  theoretically  the  case  of  prostitution ;  and  if  such  difference  be 
the  true  ground  upon  which  to  base  a  confirmation  of  the  conviction, 
knowledge  of  his  or  her  condition  on  the  part  of  the  person  affected 
is  immaterial.     It  is  the  knowledge  or  want  of  knowledge  on  the  part 
of  the  person  who  suffers  from  contagion  alone  that  is  the  material 
element.      Surelv  these  considerations  point  to  the  conclusion  that  a 
wide  door  will  be  opened  to  inquiries  not   of  a   wholesome  kind,  in 
which  the  difflculties  in  the  way  of  arriving  at  truth  are  often  enor- 
mous, and  in  whicli  the  danger  of  going  wrong  is  as  great  as  it  is  by 
people  in  general  inadequately  appreciated.     A  new  field  of  extortion 
may  be  developed,  and  very  possibly  a  fresh  illustration  afforded  of 
the  futility  of  trying  to  teach  morals  by  the  application  of  the  criminal 
law  to  cases  occupying  the  doubtful  ground  between  immorality  and 
crime,   and   of  the  dangers  which   always   beset  such  attempts.      Of 
course,  if  by  legislation  such  cases  should  be  brought  within  the  crim- 
inal law,  all  we  shall  have  to  do  will  be  to  face  the  diflEiculties  and  do 
our  best  to  administer  the  law.     It  seems  to  me,  however,  that  such 
an  extension  of  the  criminal  law  to  a  vast  class  of  cases  with  which  it 
has  never  yet  professed  to  deal  is  a  matter  for  the  Legislature  and  the 
Legislature  only.     I  understand  the  process  of  expansion  by  which 
the  doctrines  of  the  common  law  are  properly  made  by  judicial  con- 
struction to  apply  to  altered  modes  of  life  and  to  new  circumstances 
and  results  thus  brought  about  which  would  have  startled  our  ancestors 
could  they  have  foreseen  them.     I  do  not  understand  such  a  process, 
and  I  do  not  think  it  legitimate,  when  every  fact  and  every  circum- 
stance which  goes  to  constitute  the  alleged  offence  is  identical  with 
what  it  has  been  for  many  hundreds  of  years  past.     Whether  further 
legislation  in  this  direction  is  desirable  is  a  question  for  legislators  rather 
than  lawyers,  and  the  only  remark  that  I  desire  to  make  upon  this  sub- 
ject is  that,  apart  from   cases  of  actual  violence,  and  of  children  so 


SECT.  III.]  REGIXA    V.    CLARENCE.  201 

3'ouiig  that  the  very  fact  of  touching  them  in  the  wa}-  of  sexual  rela- 
tion ma}-  fairly  be  treated  as  a  crime,  the  m3-steries  of  sexual  im])ulses 
and  intercourse  are  well  nigh  insoluble,  and  the  difficulty  of  arriving  at 
the  truth  in  the  case  of  im[)uted  misconduct  enormous  ;  and  I  doubt 
whether  the}'  can  be  thoroughly  appreciated  without  the  experience 
gained  by  trying  cases  of  intercourse  with  girls  near  the  age  of  six- 
teen, and  the}-  certainly  suggest  the  necessity  of  the  utmost  care  in 
dealing  by  way  of  legislation  with  the  subject  under  discussion.  If 
intercourse  under  the  circumstances  now  in  question  constitute  an 
assault  on  the  part  of  the  man,  it  must  constitute  rape,  unless,  indeed, 
as  between  married  persons  rape  is  impossible,  —  a  proposition  to  which 
I  certainly  am  not  prepared  to  assent,  and  for  which  there  seems  to  me 
to  be  no  sufficient  authority.  As  between  unmarried  people  this  quah- 
fication  will  not  apply.  I  cannot  understand  why,  as  a  general  rule,  if 
intercourse  be  an  assault,  it  should  not  be  a  rape.  To  separate  the 
act  into  two  portions,  as  was  suggested  in  one  of  the  Irish  cases,  and 
to  say  that  there  was  consent  to  so  much  of  it  as  did  not  consist  in  the 
administration  of  an  animal  poison,  seems  to  me  a  subtlety  of  an  ex- 
treme kind.  There  is,  under  the  circumstances,  just  as  much  and  just 
as  little  consent  to  one  part  of  the  transaction  as  to  the  rest  of  it.  No 
one  can  doubt  that  in  this  case,  had  the  truth  been  known,  there  would 
have  been  no  consent  or  even  a  distant  approach  to  it.  I  greatly  prefei- 
the  reasoning  of  those  who  say  that,  because  the  consent  was  not  to 
the  act  done,  the  thing  done  is  an  assault.  If  an  assault,  a  rape  also, 
as  it  appears  to  me.  I  am  well  aware  of  the  respect  due  to  the  opinion 
of  the  very  learned  judges  from  whom  I  differ  ;  but  I  cannot  help  say- 
ing that  to  me  it  seems  a  strange  misapplication  of  language  to  call 
such  a  deed  as  that  under  consideration  either  a  rape  or  an  assault.  In 
other  words,  it  is,  roughly  speaking,  where  the  woman  does  not  intend 
that  the  sexual  act  shall  be  done  upon  her  either  at  all,  or,  what  is 
pretty  much  the  same  thing,  by  the  particular  individual  doing  it ;  and 
an  assault  which  includes  penetration  does  not  seem  to  me,  under  such 
circumstances,  to  be  anything  but  rape.  Of  course,  the  thing  done  in 
the  present  case  is  wicked  and  cruel  enough.  No  one  wishes  to  say  a 
word  in  palliation  of  it.  But  that  seems  to  me  to  be  no  reason  for 
describing  it  as  something  else  than  it  is,  in  order  to  bring  within  the 
criminal  law  an  act  which,  up  to  a  very  recent  time,  no  one  ever 
thought  was  within  it.  If  coition,  under  the  circumstances  in  question, 
be  an  assault,  and  if  the  reason  why  it  is  an  assault  depends  in  any 
degree  upon  the  fact  that  consent  would  have  been  withheld  if  the 
truth  had  been  known,  it  cannot  the  less  be  an  assault  because  no  mis- 
chief ensues  to  the  woman,  nor,  indeed,  where  it  is  merely  uncertain 
whether  the  man  be  infected  or  not.  For  had  he  disclosed  to  the 
woman  that  there  might  be  the  peril  in  question,  she  would,  in  most 
cases  other  than  that  of  mere  prostitution,  have  refused  her  consent, 
and  it  is,  I  should  hope,  equally  true  that  a  married  woman,  no  less 


202  REGINA    V.   CLARENCE.  [CHAP.  III. 

than  an  unmatTied  woman,  would  be  justified  in  such  a  refusal.  In  all 
such  cases,  therefore,  apart  from  the  suggested  impossibilit}'  of  rape 
upon  a  wife,  rape  must  be  committed,  and  a  great  many  rapes  must  be 
constantly  taking  place  without  either  of  the  parties  having  the  least 
idea  of  the  fact.  The  question  raised  is  of  very  wide  application.  It 
does  not  end  with  the  particular  contagion  under  consideration,  but 
embi'aces  contagion  communicated  b}'  persons  having  small-pox  or 
scarlet  fever,  or  other  like  diseases  quite  free  from  the  sexual  element, 
and  whilst  so  afflicted  coming  into  a  personal  contact  with  others  which 
would  certainly  have  been  against  the  will  of  those  touched  had  they 
known  the  truth.  This  species  of  assault,  if  assault  it  be,  must  have 
been  of  much  longer  standing  than  the  four  centuries  I  have  alluded 
to,  and  it  involves  no  considerations  depending  upon  the  social  status 
of  women,  yet  no  one  has  ever  been  prosecuted  for  an  assault  so  con- 
stituted. But  upon  this  point  I  desire  only  to  express  my  concurrence 
in  the  observations  of  m^-  brother  Stephen,  which  I  have  had  the 
opportunity  of  reading.  I  wish  to  observe  that,  if  an  assault  can  be 
committed  b}-  coition  to  which  consent  has  been  procured  by  suppres- 
sion of  the  truth  or  misrepresentation  as  to  the  state  of  health  of  one 
of  the  parties,  questions  of  the  kind  I  have  indicated  will  ha  triable, 
may  be  tried  now  at  petty  sessions.  The  observation  is  not,  of  course, 
conclusive  ;  but  it  is  well  to  appreciate  whither  a  conviction  in  the 
present  case  must  lead  us,  not  only  as  regards  the  subject-matter  of 
the  criminal  law,  but  as  to  the  tribunals  which  will  have  to  administer 
it.  When  the  Act  of  1861  (24  &  25  Vict.  c.  100)  was  passed,  it  had 
never  occurred  to  any  human  being,  so  far  as  our  legal  history  affords 
any  clue,  that  the  circumstances  now  under  consideration  constituted 
an  assault.  The  term  is  as  old  as  an}'  in  our  law,  but  it  had  never 
been  so  applied.  The  doctrine  owes  its  origin  to  the  remarks  of 
Willes,  J.,  at  the  Taunton  Assizes,  held  in  1866,  and  reported  in  Reg. 
V.  Bennett  (4  F.  &  F.  1105).  It  was  pointed  out  in  the  Irish  case  of 
Hegarty  v.  Shine  (Ir.  L.  Rep.  2  C.  L.  273  ;  C.  A.  Ir.  L.  Rep.  4  C.  L. 
288)  that  the  conviction  might  be  upheld,  on  the  ground  that  the  girl 
was,  as  she  alleged,  asleep  when  intercourse  took  place,  and  therefore 
gave  no  consent.  In  spite  of  all  my  respect  for  everything  that  fell 
from  the  lips  of  that  very  great  lawyer,  I  am  compelled  to  think  that 
it  was  a  case  in  which  he  strained  the  law  for  the  purpose  of  punishing 
a  great  wrong,  and  I  confess  myself  unable  to  follow  his  view,  that 
the  thing  done  in  that  case  miglit  be  an  assault  and  yet  not  a  rape. 
Were  it,  however,  possible  that  the  mere  words  of  the  section  would 
appl}'  to  the  transaction  in  question,  and  that  it  were  capable  of  being 
described  as  an  assault,  I  am  still  of  opinion  that  the  context  shows 
that  sexual  crimes  were  intended  to  be  dealt  with  as  a  class  by  them- 
selves, the  onlj-  rational  way  of  legislating  upon  such  a  subject ;  and  if 
the  letter  of  the  section  could  be  satisfied  b^'  the  present  circumstances, 
there  never  was  a  case  to  which  the  maxim  Qui  hceret  in  liter d  hceret 
in  cortice  more  emphatically  applied. 


SECT.  III.]  REGINA    V.    CLARENCE.  203 

Hawkins,  .1.,  read  the  following  judgment:  I  am  of  opinion  that 
the  prisoner  was  rightly-  eonvicted  upon  both  counts  of  the  indictment. 
The  first  count  was  framed  under  sect.  20  of  24  &  25  Vict.  c.  100,  and 
charged  the  prisoner  with  "  unlawAilly  and  maliciousl}-  inflicting  griev- 
ous bodily  harm  "  upon  Selina  Clarence.  The  second  count  was  framed 
under  sect.  47  of  the  same  Act,  and  charged  him  with  an  "assault" 
upon  the  said  Selina  Clarence,  "occasioning"  her  "actual  bodily 
harm."  At  the  time  of  the  committing  of  the  offences  charged  Selina 
Clarence  was  and  still  is  the  wife  of  the  prisoner.  At  that  time  the 
prisoner  was  suffering  from  gonorrhoea,  as  he  knew,  but  his  wife  was 
ignorant  of  the  fact.  In  this  condition  of  things  the  prisoner  had 
sexual  intercourse  with  his  wife,  and  in  so  doing  communicated  to  her 
his  disease,  and  thereby  caused  her  grievous  bodily  harm.  It  must 
also  be  taken  as  a  fact  that,  had  the  prisoner's  wife  known  that  he  was 
so  suffering  she  would  have  refused  to  submit  to  such  intercourse.  On 
the  prisoner's  behalf  it  was  contended  that  the  conviction  was  wrong 
upon  several  grounds  :  first,  that  the  injury  caused  to  the  wife  was  the 
result  of  a  lawful  act.  viz.,  the  sexual  communion  of  a  husband  with 
his  wife  ;  seeondlj-,  that  the  charge  in  the  first  count  involved,  and  that 
in  the  second  count  was  based  on,  an  assault,  and  that  no  assault 
could  be  committed  by  a  husband  in  merely  exercising  his  marital 
right  upon  the  person  of  his  wife  ;  and,  thirdly,  that  the  sections  of  the 
statute  under  which  the  indictment  was  framed  had  no  application  to 
such  circumstances  as  those  above  mentioned.  About  the  unlawfulness 
and  maliciousness  of  the  prisoner's  conduct  it  seems  to  me  impossible 
to  raise  a  doubt.  It  has  long  been  established  b}'  authority  that,  if  a 
husband  knowingly  communicates  to  his  wife  a  venereal  disease,  such 
misconduct  amounts  to  legal  cruelt}-,  and  is  ground  for  judicial  separa- 
tion ;  and,  in  the  absence  of  evidence  to  the  contrary,  it  may  be  pre- 
sumed that  a  man  suffering  under  venereal  disease  knows  it,  and  knows 
also  that,  if  he  has  comjuunion  with  his  wife,  he  will  in  all  human 
probability  communicate  his  malady  to  her  (see  Brown  v.  Brown,  L. 
Rep.  1  P.  &  D.  46).  It  is  equally  clear  that  wilfull}'  to  do  an  unlawful 
act  to  the  prejudice  of  another  is  to  do  it  maliciously.  We  have,  then, 
these  elements  established,  grievous  bodily  harm  unlawfull}'  and 
maliciously  caused.  ...  I  proceed  now  to  consider  the  question 
whether  there  was  in  fact  an  assault  by  the  prisoner  on  his  wife  occa- 
sioning her  either  grievous  or  actual  bodily  harm.  I  answer  this 
question  also  in  the  affirmative.  B\'  the  marriage  contract  a  wife  no 
doubt  confers  upon  her  husband  an  irrevocable  privilege  to  have  sexual 
intercourse  with  her  during  such  time  as  the  ordinary  relations  created 
by  such  contract  subsist  between  them.  For  this  reason  it  is  that  a 
husband  cannot  be  convicted  of  a  rape  committed  b}-  him  upon  the 
person  of  his  wife.  But  this  marital  privilege  does  not  justify  a  hus- 
band in  endangering  his  wife's  health  and  causing  her  grievous  bodily 
harm  by  exercising  his  marital  privilege  w'hen  he  is  suffering  from 
venereal  disorder  of  such  a  character  that  the  natural  consequence  of 


204  REGINA   V.   CLARENCE.  [CHAP.  III. 

such  communion  will  be  to  communicate  the  disease  to  her.  Lord 
Stowell,  in  Popkin  v.  Popkin,  cited  in  Durant  v.  Durant  (1  Hagg.  Eccl. 
Rep.  767),  said  :  "  The  husband  has  a  right  to  the  person  of  his  wife, 
but  not  if  her  health  is  endangered."  So,  to  endanger  her  health, 
and  cause  her  to  suffer  from  loathsome  disease  contracted  through  his 
own  infidelity  cannot,  by  the  most  liberal  construction  of  his  matri- 
monial privilege,  be  said  to  fall  within  it ;  alid,  although  I  can  cite  no 
direct  authority  upon  the  subject,  I  cannot  conceive  it  possible  seri- 
ously to  doubt  that  a  wife  would  be  justified  in  resisting  by  all  means 
in  her  power  —  nay,  even  to  the  death,  if  necessary  —  the  sexual  em- 
braces of  a  husband  suflTering  from  such  contagious  disorder.  In  my 
judgment,  wilfully  to  place  his  diseased  person  in  contact  with  hers 
without  her  express  consent  amounts  to  an  assault.  It  has  been 
argued  that,  to  hold  this,  would  be  to  hold  that  a  man  who,  suffering 
from  o-onorrhoea,  has  communion  with  his  wife  might  be  guilty  of  the 
crime  of  rape.  I  do  not  think  this  would  be  so.  Rape  consists  in  a 
man  having  sexual  intercourse  with  a  woman  without  her  consent,  and 
the  marital  privilege  being  equivalent  to  consent  given  once  for  all  at 
the  time  of  marriage,  it  follows  that  the  mere  act  of  sexual  communion 
is  lawful ;  but  there  is  a  wide  difference  between  a  simple  act  of  com- 
munion which  is  lawful  and  an  act  of  communion  combined  with  infec- 
tious contagion  endangering  health  and  causing  harm  which  is  unlawful. 
It  may  be  said  that,  assuming  a  man  to  be  diseased,  still,  as  he  cannot 
have  communion  with  his  wife  without  contact,  the  communication  of 
the  disease  is  the  result  of  a  lawful  act,  and  therefore  cannot  be  crim- 
inal. My  reply  to  this  argument  is  that  if  a  person,  having  a  privilege 
of  which  he  may  avail  himself  or  not  at  his  will  and  pleasure,  cannot 
exercise  it  without  at  the  same  time  doing  something  not  included  in 
this  privilege,  and  which  is  unlawful  and  dangerous  to  another,  he 
must  either  forego  his  privilege  or  take  the  consequences  of  his  unlaw- 
ful conduct.  I  may  further  illustrate  my  view  upon  this  part  of  the 
case  by  applying,  by  way  of  test,  to  an  indictment  for  assault  the  old 
form  of  civil  pleadings.  Thus  :  Indictment  for  an  assault ;  plea  of 
justification,  that  the  alleged  assault  was  the  having  sexual  communion 
with  the  prosecutrix,  she  being  the  prisoner's  wife;  new  assignment, 
that  the  assault  charged  was  not  that  charged  in  the  plea,  but  the  un- 
lawful and  malicious  contact  of  her  person  with  dangerous  and  contagious 
disease.  What  possible  justification  could  be  pleaded  or  answer  given 
to  such  new  assignment?  I  ought  perhaps  to  state  that,  even  if  to  hold 
a  husband  Uable  for  an  assault  under  such  circumstances  would  be  to 
subject  him  also  to  a  charge  of  rape,  the  opinion  I  have  above  expressed 
would  not  be  changed.  No  jury  would  be  found  to  convict  a  husband 
of  rape  on  his  wife  except  under  very  exceptional  circumstances,  any 
more  than  they  would  convict  of  larceny  a  servant  who  stealthily 
appropriated  to  her  own  use  a  pin  from  her  mistress's  pincushion.  I 
can,  however,  readily  imagine  a  state  of  circumstances  under  which  a 
nusband  misht  deservedly  be  punished  with  the  penalty  attached  U 


SECT.  III.]  REGINA   V.    CLARENCE.  205 

rai)e,  and  a  person  committing  a  tlieft  even  of  a  pin  to  the  penalty 
attached  to  hircen}'.  The  cases  put  of  a  person  suffering  from  small- 
pox, diphtheria  or  any  other  infectious  disoixler,  thouglitlessly  giving  a 
wife  or  child  a  mere  affectionate  kiss  or  sliaUe  of  tiie  hand  from  which 
serious  consequences  never  contemplated  ensued,  seem  to  me  cases  in 
which  it  is  impossible  to  suppose  any  criminal  prosecution  would  be 
tolerated,  or  could,  if  tolerated,  result  in  a  conviction  ;  but  I  can 
picture  to  myself  a  state  of  things  in  which  a  kiss  or  shake  of  the 
hand  given  by  a  diseased  person,  maliciousl}^  with  a  view  to  communi- 
cate his  disorder,  might  well  form  the  subject  of  criminal  proceedings. 
I  will  not,  however,  stop  to  discuss  such  imaginary  cases  further.  The 
case  of  Reg.  r.  Bennett  (4  F.  &  F.  1105),  decided  in  1866,  is  an 
authority  directly  in  support  of  the  view  I  have  taken.  The  indictment 
w^as  for  an  indecent  assault  on  a  girl  who  had  consented  to  sleep  with 
the  prisoner,  who  had  connection  with  her,  and  communicated  to  her  a 
foul  disease.  Willes,  J.,  before  whom  the  case  was  tried,  in  summing- 
up,  told  the  jury  that,  though  it  would  have  been  impossible  to  have 
established  rape,  yet  if  the  girl  did  not  consent  to  the  aggravated  cir- 
cumstances—  i.  e.,  to  connection  with  a  diseased  man  —  his  act  would 
be  an  assault.  Willes,  J.,  no  doubt,  according  to  the  report,  based  his 
observations  upon  the  tule  that  fraud  vitiates  consent ;  but  it  is  clear 
bis  mind  was  alive  to  the  point  I  have  been  considering,  viz.,  that, 
though  there  might  be  such  consent  to  sexual  intercourse  as  to  make 
the  connection  no  rape,  nevertheless,  the  infectious  contact  might 
amount  to  an  assault.  See  also  Hegarty  v.  Shine,  14  Cox  C.  C.  124 ; 
s.  c.  C.  A.  ib.  145  ;  and  Reg.  v.  Sinclair,  13  Cox  C.  C.  28,  In  dealing 
with  this  case  m}"  judgment  is  not  based  upon  the  doctrine  that  fraud 
vitiates  consent,  because  I  do  not  think  that  doctrine  applies  in  the 
case  of  sexual  communion  between  husband  and  wife.  Tlie  sexual 
communion  between  them  is  b}'  virtue  of  the  irrevocable  privilege  con- 
ferred once  for  all  on  the  husband  at  the  time  of  the  marriage,  and 
not  at  all  by  virtue  of  a  consent  given  upon  each  act  of  communion,  as 
is  the  case  between  unmarried  persons.  M}-  judgment  is  based  on  the 
fact  that  the  wrongful  act  charged  against  the  prisoner  was  not  involved 
in  or  sanctioned  by  his  marital  privilege,  and  was  one  for  which  no 
consent  was  ever  given  at  all.  For  this  reason  it  is  unnecessary  to 
discuss  or  express  any  opinion  upon  the  various  cases  cited  during  the 
argument  relating  to  connection  obtained  by  fraud,  and  I  accordingly 
abstain  from  doing  so.  Another  argument  used  for  the  prisoner  was 
that  such  cases  as  the  present  were  not  contemplated  by  the  statute 
under  which  he  was  indicted,  and  it  was  also  said  that,  if  it  had  been 
intended  that  the  communication  of  a  venereal  disease  to  a  woman 
during  an  act  of  sexual  intercourse,  consented  to  by  her,  should  be 
punishable  as  a  crime,  some  special  enactment  to  that  effect  would 
have  been  introduced  into  one  or  other  of  the  Acts  of  Pailiament  relat- 
ing to  women  and  offences  against  them.  This  is  an  argument  to 
which  I  attach  no  weight,  assuming  the  facts  bring  the  case  within  the 


206  REGINA   V.    CLARENCE.  [CHAP.  III. 

fair  interpretation  of  the  sections  to  wliicli  I  have  referred.  Moreos'er, 
I  may  point  out  that  Reg.  v.  Bennett  (4  F.  &  F.  1105),  to  which  I 
have  referred,  was  tried  in  the  year  1866,  and  it  is  strange,  if  the 
law  as  there  laid  down  was  thought  to  be  contrar}'  to  the  law  of 
the  land  or  to  the  intention  of  the  Legislature,  that  in  no  subse- 
quent legislation  during  the  twent^'-two  ^-ears  which  have  since  elapsed 
has  any  enactment  been  introduced  in  which  an}-  expression  is  to 
be  found  indicative  of  a  disapproval  of  that  decision  or  that  the 
intention  of  the  statute  was  at  variance  with  it.  I  think  the  Legisla- 
ture contemplated  the  punishment  of  all  grievous  bodil}'  harm,  howcA-er 
caused,  if  caused  unlawfuU}-  and  maliciously  ;  and  I  cannot  bring  my 
mind  for  an  instant  to  believe  that,  even  had  the  circumstances  before 
us  been  present  to  the  minds  of  the  framers  of  the  Act,  the}'  would 
have  excluded  from  its  operation  an  offence  as  cruel  and  as  contrar}-  to 
the  obligation  a  man  owes  to  his  wife  to  protect  her  from  harm  as  can 
well  be  conceived.  It  has  been  urged  that  the  case  of  husband  and 
wife  does  not  differ  from  that  of  unmarried  persons,  and  that  to  affirm 
this  conviction  would  tend  to  encourage  undesirable  prosecutions  where 
disease  has  been  communicated  during  illicit  communion.  I  do  not  b}' 
an}'  means  assent  to  these  propositions.  I  think  the  two  cases  are 
substantially  different.  The  wife  submits  to  her  husband's  embraces 
because  at  the  time  of  marriage  she  gave  him  an  irrevocable  I'ight  to 
her  person.  The  intercourse  which  takes  place  between  husband  and 
wife  after  marringc  is  not  by  virtue  of  nny  special  consent  on  her  part, 
but  in  mere  submission  to  an  obligation  imposed  upon  her  by  law.  L  on- 
sent  is  immaterial.  In  the  case  of  unmarried  persons,  however,  consent 
is  necessary  previous  to  every  act  of  communion,  and  if  a  common 
prostitute  were  to  charge  with  a  criminal  offence  a  man  who,  in  having 
had  connection  with  her  had  infected  her  with  disease,  few  juries  would 
under  ordinary  circumstances  hesitate  to  find  that  each  party  entered 
into  the  immoral  communion  tacitly  consenting  to  take  all  risks.  In 
the  case  of  women  other  than  prostitutes,  the  circumstances  of  each 
particular  case  would  have  to  be  considered,  and  the  question  how  far 
fraud  vitiates  consent  to  such  communion  would  also  have  to  be  dealt 
with.  In  such  cases,  too,  shame  would  deter  most  decent  women  from 
appealing  to  the  law  ;  and,  if  a  man  were  the  sufferer,  seldom  would  he 
incur  the  ridicule  and  exposure  which  would  be  brought  upon  him. 
Considering  how  few  prosecutions  have  been  instituted  for  such  causes 
since  the  decision  in  Reg.  v.  Bennett  (4  F.  &  F.  1105),  and  enter- 
taining moreover,  as  I  do,  a  doubt  whether  any  person,  man  or 
woman,  could,  as  against  the  public  interests,  consent  to  the  inflic- 
tion of  grievous  bodily  harm,  so  as  to  give  a  legal  defence  to  a  crim- 
inal prosecution,  although  such  consent  might  afford  a  good  defence 
to  a  civil  action,  I  do  not  see  any  reason  for  such  fears  on  the  subject 
as  have  been  entertained.  Anyhow  they  cannot  affect  the  law.  Forti- 
fied in  my  opinion,  as  I  believe  myself  to  be,  by  the  plain  words  of  the 
statute,  and  by  the  authority  of  Willes,  J.,  one  of  the  greatest  and  most 


SECT.  111.]  REGINA   V.   BARROW.  207 

accurate  lawyers  of  modern  times,  1  have  arrived  at  the  conclusion 
that  this  conviction  is  right  and  in  accordance  with  the  law,  and  1  can- 
not therefore  be  a  party  to  a  judgment  wliich  in  effect  would  proclaim 
to  the  world  that  by  tlie  law  of  England  in  this  year  1888  a  man  may 
deliberately,  knowingly,  and  maliciously  perpetrate  upon  the  body  of 
his  wife  the  abominable  outrage  charged  against  the  prisoner,  and  yet 
not  be  punishable  criminally  for  sucli  atrocious  barbarity.  I  may  state 
that  this  judgment  has  been  read  by  my  brother  Day,  who  requests  me 
to  say  that  he  thoroughly  concurs  in  it.'' 


REGINA    V.  BARROW. 

Ckown  Case  Reserved.     1868. 

[Reported  L.  R.  1  Crown  Cases  Reserved,  156.] 

The  following  case  was  stated  by  Kelly.  C.  B.  :  — 

This  was  an  indictment  for  a  rape.  The  question  is  whether  the 
offence  as  proved  amounted  in  point  of  law  to  a  rape.  This  question 
depended  entirely  upon  tlie  evidence  of  the  prosecutrix,  Harriet  Gel- 
dart,  wiiich  was  as  follows  :  — 

"  I  and  my  husband  lodge  together  at  William  Garner's.  We  sleep 
upstairs  on  the  first  floor,  and  were  in  bed  together  on  the  night 
of  Saturday,  the  21st  of  June.  I  went  to  bed  about  12  o'clock,  and 
about  2  o'clock  on  Sunday  morning  I  was  lying  in  bed,  and  my 
husband  beside  me.  I  had  my  baby  in  my  arms,  and  was  between 
waking  and  sleeping.  I  was  completely  awakened  by  a  man  having 
connection  with  me,  and  pushing  the  baby  aside  out  of  my  arms.  He 
was  having  connection  with  me  at  tlie  moment  when  I  completely 
awoke.  I  thought  it  was  my  husband,  and  it  was  while  I  could  count 
five  after  I  completely  awoke  before  I  found  it  was  not  my  husband. 
A  part  of  my  dress  was  over  my  face,  and  I  got  it  off,  and  he  was 
moving  away.  As  soon  as  I  found  it  was  not  my  husband,  I  pulled 
my  husband's  hair  to  wake  him.     The  prisoner  jumped  off  the  bed." 

On  cross-examination  she  added,  "  Till  I  got  my  dress  off  my  face  I 
thought  it  was  ray  husband.  After  he  had  finished  I  pulled  the  dress 
oflT  my  face.  I  was  completely  awakened  by  the  man  having  connec- 
tion with  me  and  the  baby  being  moved."  On  re-examination  she  said, 
"  The  baby  was  pushed  on  further  into  the  bed." 

The  jury  found  this  evidence,  as  I  have  stated  it,  to  be  true. 

Upon  these  facts  the  prisoner's  counsel,  Mr.  Cottingham,  submitted 
that  the  indictment  was  not  sustained,  and  quoted  1  Russell  on  Crimes, 
ed.  of  1843,  p.  677  ;  Rex  v.  Jackson,  Russ.  &  Ry.  487  ;  Reg.  v.  Saun- 
ders, 8  C.  &  P.  265  ;  Rex  v.  Williams,  8  C.  i&  P.  286  ;  Reg.  v.  Camp- 

1  Smith,  Stephen,  and  Manisty,  JJ.,  Pollock,  B.,  and  Coleridge,  C.  J.,  also 
delivered  opinions  against  the  conviction.  Mathew  and  Grantham,  JJ.,  and 
Huddleston,  B.,  agreed.  Field,  J.,  also  delivered  an  opinion  supporting  the  con- 
viction, and  Day  and  Charles,  JJ.,  agreed.  See,  contra,  Keg.  ^.'Bennett,  4  F.  &  F. 
1105  ;  Reg.  v.  Sinclair,  13  Cox  C.  C.  28.  — Ed. 


208  REGINA  V.   BARROW.  [CHAP.  III. 

lin,  1  Den.  C.  C.   89.     Reg.  v.  Fletcher,  8   Cox  C.  C.  131,   was  also 
referred  to. 

I  thought,  especially  on  the  authority  of  the  judgment  delivered  by 
Lord  Campbell  in  Reg.  v.  Fletcher,  8  Cox  C.  C.  131,  that  the  case 
was  made  out,  inasmuch  as  it  was  sufficient  that  the  act  was  done  by 
force  and  without  consent  before  or  afterwards  ;  that  the  act  itself, 
coupled  with  the  pushing  aside  the  child,  amounted  to  force  ;  and  there 
was  certainly  no  consent  before,  and  the  reverse  immediately  after- 
wards ;  but  i  reserved  the  point  for  the  Court  of  Criminal  Appeal. 

No  counsel  appeared  on  either  side. 

BoviLL,  C.  J.  We  have  cai-efully  considered  the  facts  as  stated  in 
this  case.  It  does  not  appear  that  the  woman,  upon  whom  the  offence 
was  alleo'ed  to  have  been  committed,  was  asleep  or  unconscious  at  the 
time  when  the  act  of  connection  commenced.  It  must  be  taken,  there- 
fore, that  the  act  was  done  with  the  consent  of  the  prosecutrix,  though 
that  consent  was  obtained  by  fraud.  It  falls,  therefore,  within  the 
class  of  cases  which  decide  that,  where  consent  is  obtained  by  fraud, 
the  act  done  does  not  amount  to  rape. 

Channell,  B.,  Byles,  Blackburn,  and  Lush,  JJ.,  concurred.^ 

Conviction  quashed. 

1  Now,  rape  being  defined  to  be  sexual  connection  with  a  woman  without  her 
consent,  or  without  and  therefore  against  her  will,  it  is  essential  to  consider  what  is 
meant  and  intended  by  consent.  Does  it  mean  an  intelligent,  positive  concurrence  of 
the  will  of  the  Avoman,  or  is  the  negative  absence  of  dissent  sufficient  ?  In  these  sur- 
gical cases  it  is  held  that  the  submission  to  an  act  believed  to  be  a  surgical  operation 
does  not  constitute  consent  to  a  sexual  connection,  being  of  a  wholly  different  charac- 
ter; there  is  no  consensus  quoad  hoc.  In  the  case  of  personation  tbere  is  no  consensus 
quoad  hanc  personam.  Can  it  be  considered  that  there  is  a  consent  to  the  sexual  con- 
nection, it  being  manifest  that,  had  it  not  been  for  the  deceit  or  fraud,  the  woman 
would  not  have  submitted  to  the  act  ?  In  the  cases  of  idiocy,  of  stupor,  or  of  infancy,  it 
is  held  that  there  is  no  legal  consent,  from  the  want  of  an  intelligent  and  discerning  will. 
Can  a  woman,  in  the  case  of  personation,  be  regarded  as  consenting  to  the  act  in  the 
exercise  of  an  intelligent  will  ?  Does  she  consent,  not  knowing  the  real  nature  of  the 
act  ?  As  observed  by  Mr.  Curtis,  she  intends  to  consent  to  a  lawful  and  marital  act, 
to  which  it  is  her  duty  to  submit.  But  did  she  consent  to  an  act  of  adultery  ?  Are 
not  the  acts  themselves  wholly  different  in  their  moral  nature  ?  The  act  she  per- 
mitted cannot  properly  be  regarded  as  the  real  act  which  took  place.  Therefore  the 
connection  was  done,  in  my  opinion,  without  her  consent,  and  the  crime  of  rape  was 
constituted.  I  therefore  am  of  opinion  that  the  conviction  should  stand  confirmed.— 
M.\Y,  C.  J.,  in  Reg  v.  Dee,  15  Cox  C.  C.  379,  587. 

In  accordance  with  the  principal  case,  see  Reg.  v.  Fletcher,  10  Cox  C  C.  248 ;  Don 
Moran  v.  People,  25  Mich.  356  ;  Wyatt  v.  State,  2  Swan,  394.  —  Ed. 


SECT.    III.]  COMMONWEALTH    V.    STIIATTON.  209 

WRIGHT'S   CASE. 

Leicester  Assizes.     1604. 
[Reported  Co.  Lit.  127  a.] 

In  my  circuit  in  anno  1  Jacobi  regis,  in  the  county  of  Leicester,  one 
Wrigiit,  a  young,  strong,  and  lustie  rogue,  to  make  himselfe  impotent, 
thereby  to  have  the  more  colour  to  begge  or  to  be  relieved  without  put- 
ting himselfe  to  any  labour,  caused  his  companion  to  strike  off  his  left 
hand  ;  and  both  of  them  were  indicted,  fined,  and  ransomed  there- 
fore, and  that  by  the  opinion  of  the  rest  of  the  justices  for  the  cause 
aforesaid. 


COMMONWEALTH  v.   STRATTON. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

[Reported  114  Massachusetts,  303.] 

Indictments,  each  charging  that  the  defendant,  upon  a  certain  young 
woman  in  the  indictment  named,  made  an  assault  and  administered  to 
her  a  large  quantity  of  cantharides,  "  the  same  being  ...  a  deleterious 
and  destructive  drug,"  with  intent  to  injure  her  health,  wherebj'  she 
became  sick,  and  her  life  was  despaired  of.  Both  cases  were  tried 
together. 

It  appeared  at  the  trial  in  the  Superior  Court,  before  Devens,  J., 
that  the  defendant,  in  company  with  another  young  man,  called  upon 
the  young  women  in  the  indictments  named,  and  during  the  call  offered 
them  some  figs,  which  they  ate,  they  having  no  reason  to  suppose  that 
the  figs  contained  any  foreign  substance  ;  that  a  few  hours  after,  both 
young  women  were  taken  sick,  and  suffered  pain  for  some  hours  ;  that 
the  defendant  and  his  companion  had  put  into  the  figs  something  they 
had  procured  by  the  name  of  "love  powders,"  which  was  represented 
by  the  person  of  whom  they  got  it  to  be  perfectly  harmless. 

There  was  evidence  that  one  of  the  ingredients  of  these  powders  was 
cantharides,  and  that  this  would  tend  to  produce  sickness  like  that 
which  the  young  women  suffered. 

The  Court  instructed  the  jury  that  if  it  was  shown  beyond  a  reason- 
able doubt  '•  that  the  defendant  delivered  to  the  women  a  harmless  arti- 
cle of  food,  as  figs,  to  be  eaten  by  them,  he  well  knowing  that  a  foreign 
substance  or  drug  was  contained  therein,  and  concealing  the  fact,  of 
which  he  knew  the  women  to  be  ignorant,  that  such  foreign  substance 
or  drug  was  contained  therein,  and  the  women  eating  thereof  by  the  in- 
vitation of  the  defendant  were  injured  in  health  by  the  deleterious  char- 
acter of  the  foreign  substance  or  drug  therein  contained,  the  defendant 
should  be  found  guilty  of  an  assault  upon  them,  and  this,  although  he 
did  not  know  the  foreign  substance  or  drug  was  deleterious  to  health, 
had  been  assured  that  it  was  not,  and  intended  only  to  try  its  effect 
upon  them,  it  having  been  procured  by  him  under  the  name  of  a  '  love 


210  COMMONWEALTH   V.    STKATTON.  [CHAP.  III. 

powder,'  and  he  being  ignorant  of  its  qualities  or  of  the  effects  to  be 
expected  from  it." 

The  jiny  found  the  defendant  guilty  of  a  simple  assault  in  each  case, 
and  he  alleged  exceptions. 

W.  Colburn,  for  the  defendant. 

C.  H.   Train,  Attorney-General,  for  the  Commonwealth. 

Wells,  J.  All  the  judges  concur  that  the  evidence  introduced  at 
the  trial  would  warrant  a  conviction  of  assault  and  batter}'  or  for  a  sim- 
ple assault,  which  it  includes  ;  and  in  the  opinion  of  a  majority  of  the 
court,  the  instructions  given  required  the  jury  to  find  all  that  was  es- 
sential to  constitute  the  offence  of  assault  and  battery. 

The  jury  must  have  found  a  physical  injury-  inflicted  upon  another 
person  by  a  voluntary  act  of  the  defendant  directed  toward  her,  which 
was  without  justification  and  unlawful.  Although  the  defendant  was 
i^i-norant  of  the  qualities  of  the  drug  he  administered  and  of  the  effects 
to  be  expected  from  it,  and  had  been  assured  and  believed  that  it  was 
not  deleterious  to  health,  yet  he  knew  it  was  not  ordinary  food,  that 
the  girl  was  deceived  into  taking  it,  and  he  intended  that  she  should 
be  induced  to  take  it  without  her  conscious  consent,  by  the  deceit 
which  he  practised  upon  her.  It  is  to  be  inferred  from  the  statement 
of  the  case  that  he  expected  that  it  would  produce  some  effect.  In  the 
most  favorable  aspect  of  the  facts  for  the  defendant  he  administered 
to  the  girl,  without  her  consent  and  by  deceit,  a  drug  or  "  foreign  sub- 
stance," of  the  probable  effect  of  which  he  was  ignorant,  with  the  ex- 
press intent  and  purpose  "  to  tr}'  the  effect  of  it  upon"  her.  This  in 
itself  was  unlawful,  and  he  must  be  held  responsible  for  whatever  effect 
it  produced.  Being  an  unlawful  interference  with  the  personal  rights 
of  another,  calculated  to  result- and  in  fact  resulting  in  physical  injury, 
the  criminal  intent  is  to  be  inferred  from  the  nature  of  the  act  and  its 
actual  results.  3  Bl.  Com.  120;  Rex  r.  Long,  4  C.  &  P.  398,  407, 
note.  The  deceit,  b}'  means  of  which  the  girl  was  induced  to  take  the 
drug,  was  a  fraud  upon  her  will,  equivalent  to  force  in  overpowering 
it.  Commonwealth  v.  Burke,  105  Mass.  376;  Regina  v.  Lock,  12 
Cox  C.  C.  244;  Regina  v.   Sinclair,   13  Cox  C.  C.  28. 

Although  force  and  violence  are  included  in  all  definitions  of  assault, 
or  assault  and  batter}-,  yet  where  there  is  physical  injury  to  another 
person,  it  is  sufficient  that  the  cause  is  set  in  motion  by  the  defendant, 
or  that  the  person  is  subjected  to  its  operation  by  means  of  any  act  or 
control  which  the  defendant  exerts.  In  3  Chit.  Crim.  Law,  799,  is  a 
count,  at  common  law,  for  an  assault  with  drugs.  For  other  instances 
of  assault  and  battery  without  actual  violence  directed  against  the  per- 
son assaulted,  see  1  Gabbett's  Crim.  Law,  82  ;  Rose.  Crira.  Ev.  (8th 
ed.)  296  ;  3  Bl.  Com.  120  and  notes  ;  2  Greenl.  Ev.  §  84. 

If  one  should  hand  an  explosive  substance  to  another  and  induce 
him  to  take  it  by  misrepresenting  or  concealing  its  dangerous  qualities, 
and  the  other,  ignorant  of  its  character,  should  receive  it  and  cause  it 


SECT.  III.]  KEGINA    V.   MARTIN.  211 

to  explode  in  his  pocket  or  baud,  and  should  be  injured  by  it,  the  ofrend- 
ing  party  would  be  guilty  of  a  batter}-,  and  that  would  necessarily  in- 
clude an  assault ;  although  he  might  not  be  guilty  even  of  an  assault, 
if  the  substance  failed  to  explode  or  failed  to  cause  any  injury.  It 
would  be  the  same  if  it  exploded  in  bis  mouth  or  stomach.  If  that 
which  causes  the  injury  is  set  in  motion  by  the  wrongful  act  of  the  de- 
fendant, it  cannot  be  material  whether  it  acts  upon  the  person  injured 
externall}-  or  internally,  by  mechanical  or  chemical  force. 

In  Regina  v.  Button,  8  C.  &  P.  660,  one  who  put  Spanish  flies  into 
coffee  to  be  drunk  by  another  was  convicted  of  an  assault  upon  the  per- 
son who  took  it,  although  it  was  done  "  only  for  a  lark."  This  decision 
is  said  to  have  been  overruled  in  England.  Regina  v.  Dilworth,  2 
Mood.  &  Rob.  531 ;  The  Queen  v.  Walkden,  1  Cox  C.  C.  282  ;  Re- 
o-ina  V.  Hanson,  2  C.  &  K.  912.  In  the  view  of  the  majority  of  the 
court,  the  last  only  of  these  three  cases  was  a  direct  adjudication,  and 
that  entirely  upon  the  authority  of  mere  dicta  in  the  other  two  and 
without  any  satisfactory  reasoning  or  statement  of  grounds  ;  and  the 
earlier  decision  in  Regina  v.  Button  is  more  consistent  with  general 
principles,  and  the  better  law.^  Exceptions  overruled. 


REGINA  V.  MARTIN. 
Crown  Case  Reserved.     1840. 

[Reported  2  Moodij,  123.] 

The  prisoner  was  tried  before  Mr.  Baron  Alderson  upon  an  indict- 
ment, the  first  count  of  which  charged  him  with  carnally  knowing  and 
abusing  Esther  Ricketts,  a  girl  above  ten  and  under  twelve  years  of  age. 

The  second  count  was  for  an  assault  on  Esther  Ricketts  with  intent 
carnally  to  know  and  abuse  her.  The  third  count  was  for  a  common 
assault. 

Godson,  for  the  prisoner,  contended  that,  supposing  the  fact  to  have 
been  done  by  the  consent  of  the  prosecutrix,  no  conviction  could  take 
place  on  the  second  and  third  counts. 

The  learned  judge  left  the  question  to  the  jury,  who  found  the  fact 
that  the  prosecutrix  had  consented  ;  and  he  then  directed  a  verdict  of 
guilty  on  the  ground  that  the  prosecutrix  was  bylaw  incapable  of  giving 
her  consent  to  what  would  be  a  misdemeanor  by  statute. 

But   as  Godson  stated  that  the  point  was  doubtful    and   had  been 
otherwise  decided  before,  the  learned  judge  respited  the  judgment. 
1  Ace.  Carr  v.  State  (Ind.),  34  N.  E.  533.  —Ed. 


212  EEGINA    V.    BKADSHAW.  [CHAP.  III. 

It  appeared  to  the  learned  judge  clear  that  if  the  indictment  had 
charged  an  attempt  to  conimit  the  statutable  misdemeanor,  the  pris- 
oner would  clearly  have  been  liable  to  conviction  ;  but  the  learned  judge 
was  not  free  from  doubt  as  to  the  present  case,  in  which  an  assault  was 
charged. 

This  case  was  considered  at  a  meeting  of  the  judges  in  Hilarv  term, 
1840,  and  thej-  all  thought  that  the  proper  charge  was  of  a  misdemeanor 
in  attempting  to  commit  a  statutable  offence,  and  that  the  conviction 
was  wrong.^ 


REGINA  V.  BRADS  HAW. 

Leicester  Assizes.     1878. 

[Reported  14  Cox  C.  C.  83.] 

"William  Bradshaw  was  indicted  for  the  manslaughter  of  Herbert 
Dockertj,  at  Ashley -de-la-Zouch,  on  the  28th  da}'  of  February. 

The  deceased  met  with  the  injurj'  which  caused  his  death  on  the 
occasion  of  a  football  match  plaj'ed  between  the  football  clubs  of  Ashby- 
de-la-Zouch  and  Coalville,  in  which  the  deceased  was  a  placer  on  the 
Ashb}^  side,  and  the  prisoner  was  a  player  on  the  Coalville  side.  The 
game  was  played  according  to  certain  rules  known  as  the  "  Association 
Rules."  ^  After  the  game  had  proceeded  about  a  quarter  of  an  hour, 
the  deceased  was  "  dribbling"  the  ball  along  the  side  of  the  ground  in 
the  direction  of  the  Coalville  goal,  when  he  was  met  b}-  the  prisoner, 
who  was  running  towards  him  to  get  the  ball  from  him  or  prevent  its 
further  progress  ;  both  players  were  running  at  considerable  speed ;  on 
approaching  each  other,  the  deceased  kicked  the  ball  be3-ond  the  pris- 
oner, and  the  prisoner,  by  wa}'  of  "  charging"  the  deceased,  jumped  in 
the  air  and  struck  him  with  his  knee  in  the  stomach.  The  two  met, 
not  directly  but  at  an  angle,  and  both  fell.  The  prisoner  got  up  un- 
hurt, but  the  deceased  rose  with  difficulty  and  was  led  from  the  ground. 
He  died  next  day  after  considerable  sutfering,  the  cause  of  death  being 
a  rupture  of  the  intestines. 

1  "  It  is  a  presumption  of  law  that  a  girl  under  ten  years  of  age  is  incapable  of  con- 
senting to  the  offence  of  rape  (Pen.  Code,  sec.  261);  and  as  such  an  offence  Includes  an 
attempt  to  commit  it,  accompanied  hy  such  force  and  violence  upon  the  person  as  con- 
stitutes an  assault,  a  girl  under  ten  years  of  age  is  incapable  in  law  of  consenting  to 
the  assault  in  connection  with  the  attempt  to  commit  the  offence.  "Whether  the  girl 
in  fact  consented  or  resisted  is  therefore  immaterial.  Being  incapable  of  consenting  to 
an  act  of  carnal  intercourse,  it  was  criminal  for  the  defendant  to  make  an  assault  upon 
her  to  commit  such  an  act."     McKee,  J.,  in  People  v.  Gordon,  70  Cal.  467,  468.  —  Ed. 

2  Etherington  Smith,  in  opening  the  case  for  the  prosecution,  was  proceeding  to  ex- 
plain the  "Association  Eules  "  to  the  jury,  and  to  comment  upon  the  fact  of  whether 
the  prisoner  was  or  was  not  acting  within  those  rules,  when  Bramwell,  L.  J.,  inter- 
posed, saying,  "  Whether  within  the  rules  or  not  the  yirisoner  would  be  guilty  of  man- 
slaughter if  while  committiaig  an  unlawful  act  he  caused  the  death  of  the  deceased." 


SECT.  III.]  REGINA   V.   BRADSHAW.  213 

Witnesses  were  called  from  both  teams  whose  evidence  differed  as  to 
some  particulars,  those  most  unfavorable  to  the  prisoner  alleging  that 
the  ball  had  been  kicked  by  the  deceased  and  had  passed  the  prisoner 
before  he  charged  ;  that  the  prisoner  had  therefore  no  right  to  charge 
at  the  time  he  did  ;  that  the  charge  was  contrary  to  the  rules  and  prac- 
tice of  the  game  and  made  in  an  unfair  manner,  with  the  knees  protrud- 
ing ;  while  those  who  were  more  favorable  to  the  prisoner  stated  that 
the  kick  by  the  deceased  and  the  charge  by  the  prisoner  were  simultan- 
eous, and  that  the  prisoner  had  therefore,  according  to  the  rules  and 
practice,  of  the  game,  a  right  to  make  the  charge,  though  these  wit- 
nesses admitted  that  to  charge  by  jumping  with  the  knee  protruding 
was  unfair.  One  of  the  umpires  of  the  game  stated  that  in  his  opinion 
nothing  unfair  had  been  done.^ 

Bramwell,  L.  J.,  in  summing  up  the  case  to  the  jury,  said:  "  The 
question  for  30U  to  decide  is  whether  the  death  of  the  deceased  was 
caused  by  the  unlawful  act  of  the  prisoner.  There  is  no  doubt  that  the 
prisoner's  act  caused  the  death,  and  the  question  is  whether  that  act 
was  unlawful.  No  rules  or  practice  of  an}'  game  whatever  can  make 
that  lawful  which  is  unlawful  by  the  law  of  the  land  ;  and  the  law  of 
the  land  says  you  shall  not  do  that  which  is  likely  to  cause  the  death  of 
another.  P'or  instance,  no  persons  can  by  agreement  go  out  to  fight 
with  deadl}'  weapons,  doing  b}'  agreement  what  the  law  says  shall  not 
be  done,  and  thus  shelter  themselves  from  the  consequences  of  their 
acts.  Therefore,  in  one  way  you  need  not  concern  yourselves  with  the 
rules  of  football.  But,  on  the  other  hand,  if  a  man  is  plaj-ing  accord- 
ing to  the  rules  and  practice  of  the  game  and  not  going  beyond  it,  it 
may  be  reasonable  to  infer  that  he  is  not  actuated  by  an}'  malicious 
motive  or  intention,  and  that  he  is  not  acting  in  a  manner  which  he 
knows  will  be  likely  to  be  productive  of  death  or  injury.  But,  inde- 
pendent of  the  rules,  if  the  prisoner  intended  to  cause  serious  hurt  to 
the  deceased,  or  if  he  knew  that  in  charging  as  he  did  he  might  produce 
serious  injur}',  and  was  inditferent  and  reckless  as  to  whether  he  would 
produce  serious  injury  or  not,  then  the  act  would  be  unlawful.  In 
either  case  he  would  be  guilty  of  a  criminal  act,  and  you  must  find  him 
guilty  ;  if  you  are  of  a  contrary'  opinion  yoa  will  acquit  him."  His 
lordship  carefully  reviewed  the  evidence,  stating  that  no  doubt  the 
game  was,  in  an}'  circumstances,  a  rough  one  ;  but  he  was  unwilling  to 
decry  the  manly  sports  of  this  country,  all  of  which  were  no  doubt 
attended  with  more  or  less  danger.  '    Verdict,  Not  guilty. 

^  Arguments  of  counsel  are  omitted. 


214  COMMONWEALTH   V.   COLLBERG.  [CHAP.  Ill, 


COMMONWEALTH  v.  COLLBERG. 
Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported  119  ^fass.  350.] 

Two  indictments  :  one  for  an  assault  and  batter}-  by  Benjamin  F. 
Collberg  upon  Charles  E.  Phenix  ;  and  the  other  for  an  assault  and  bat- 
tery b}-  Phenix  upon  Collberg.  Both  indictments  were  founded  upon 
and  supported  by  the  same  evidence. 

At  the  trial  of  the  two  indictments  in  the  Superior  Court  before 
Lord,  J.,  there  was  evidence  for  the  Commonvvealth  tending  to  show 
that  about  six  o'clock  on  the  evening  of  Sunday,  August  22,  1875, 
Collberg  and  Phenix  met  near  the  station  of  the  Boston  and  Maine 
Railroad  in  Maiden  and  had  a  slight  altercation,  as  a  result  of  which 
Collberg  bantered  Phenix  to  fight  him  ;  that  Plienix  declined  on  the 
ground  that  he  did  not  want  to  fight  with  his  best  clothes  on,  but  said 
that  if  Collberg  would  wait  until  he  could  go  home  and  change  his 
clothes,  they  would  go  to  some  place  outside  of  the  town  and  settle  it ; 
that  thereupon  Phenix  did  go  home  and  change  his  clothes,  and  he  and 
Collberg  mot  at  a  retired  place,  remote  from  habitations  and  thorough- 
fares, and  fought  with  each  other  in  the  presence  of  some  fifty  or  seventy- 
five  persons  who  had  gathered  there,  and  that  the  fight  continued  until 
Collberg  said  that  he  had  enough,  when  it  ceased  and  the  parties  went 
iiome  ;  that  the  next  day  Collberg  and  Phenix  were  a  good  deal  bruised 
and  looked  as  if  they  had  been  fighting. 

The  defendants  testified  that  the}'  had  been  acquainted  with  each 
other  for  a  period  of  five  or  six  years,  during  which  time  they  had 
always  been  on  the  most  friendl}'  terms,  and  were  so  at  the  time  of  the 
act  complained  of,  and  subsequently ;  that  during  the  period  of  their 
acquaintance  they  had  engaged  at  various  times  in  wrestling-matches 
with  each  other,  all  of  which  had  been  carried  on  in  a  friendl}'  spirit 
and  without  engendering  any  ill  feeling  between  them  ;  that  on  the  day 
mentioned  in  the  indictment  the}'  met  towards  evening  near  the  station 
of  the  Boston  and  Maine  Railroad  in  Maiden,  where  they  had  some  talk 
about  a  recent  wrestling-match  that  had  taken  place  in  New  York,  and 
growing  out  of  this,  as  to  previous  contests  of  this  character  which  had 
taken  place  between  them  ;  that  after  some  talk  about  their  matches, 
they  agreed  to  go  then  to  some  place  where  they  should  not  disturb  any 
one  and  have  another  trial  of  their  agility  and  strength  in  this  direction  ; 
that  they  shortly  afterwards  went  to  such  a  place  and  engaged  in  a 
"  run  and  catch  "  wrestle  with  each  other,  without  any  anger  or  malice, 
or  any  intention  to  do  each  other  bodily  harm  ;  that  any  injuries  which 
they  infiicted  upon  each  other  were  inflicted  accidentally  and  by  mutual 
consent  while  voluntarily  continuing  in  such  contest. 

There  was  no  evidence  of  any  uproar  or  outcries  when  the  contest 


SECT.    III.]  COMMONWEALTH    V.   COLLBKKG.  215 

took  place,  or  that  any  one  was  disturbed  thereb\-,  except  that  the  par- 
ties were  fighting  in  presence  of  a  crowd  of  from  fifty  to  one  hundred 
persons  who  had  collected  together.  After  the  evidence  was  all  in,  the 
defendants  asked  the  judge  to  instruct  the  jury  as  follows  :  — 

"  If  the  jury  are  satisfied  that  whatever  acts  and  things  the  defend- 
ants did  to  each  other  they  did  by  mutual  consent,  and  that  the  struggle 
between  them  was  an  amicable  contest  voluntarily  continued  on  both 
sides  without  anger  or  malice,  and  simply  for  the  purpose  of  testing 
their  relative  agility  and  strength,  then  there  is  no  assault  and  battery, 
and  the  defendants  must  be  acquitted." 

The  judge  declined  to  give  this  instruction,  but  instructed  the  jury 
upon  this  branch  of  the  case  in  substance  as  follows  :  •'  That  if  the  de- 
fendants were  simply  engaged  in  a  wrestling  match,  that  being  a  lawful 
sport,  they  could  not  be  convicted  of  an  assault  and  battery  ;  but  if  by 
mutual  agreement  between  themselves,  previously  made,  they  went  to 
a  retired  spot  for  the  purpose  of  fighting  with  each  other  and  for  the 
purpose  of  doing  each  other  physical  injury  by  fighting,  with  a  view  to 
ascertain  by  a  trial  of  their  skill  in  fighting  which  was  the  best  man, 
and  there  engaged  in  a  fight,  each  endeavoring  to  do  and  actually  doing 
all  the  physical  injury  in  his  power  to  the  other,  and  if,  in  such  contest, 
each  did  strike  the  other  with  his  fist  for  the  purpose  of  injuring  him, 
each  may  properly  be  convicted  of  assault  and  battery  upon  the  other, 
although  the  whole  was  done  by  mutual  arrangement,  agreement,  and 
consent,  and  without  anger  on  the  part  of  either  against  the  other." 

To  this  instruction,  and  to  the  refusal  of  the  judge  to  give  the  in- 
struction prayed  for,  the  defendants  alleged  exceptions. 

G.  S.  Scammon,  for  the  defendants. 

W.  C.  Loving  {C.  R.  Train.,  Attorney- General,  with  him),  for  the 
Commonwealth. 

Endicott,  J.  It  appears  by  the  bill  of  exceptions  that  the  parties 
by  mutual  agreement  went  out  to  fight  one  another  in  a  retired  place, 
and  did  fight  in  the  presence  of  from  fifty  to  one  hundred  persons. 
Both  were  bruised  in  the  encounter,  and  the  fight  continued  until  one 
said  that  he  was  satisfied.  There  was  also  evidence  that  the  parties 
went  out  to  engage  in  and  did  engage  in  a  "  run  and  catch  "  wrestling 
match.  We  are  of  opinion  that  the  instructions  given  by  the  presiding 
judge  contained  a  full  and  accurate  statement  of  the  law. 

The  common  law  recognizes  as  not  necessarilv  unlawful  certain 
manly  sports  calculated  to  give  bodily  strength,  skill,  and  activity,  and 
"  to  fit  people  for  defence,  public  as  well  as  personal,  in  time  of  need." 
Playing  at  cudgels  or  foils,  or  wrestling  b}'  consent,  there  being  no 
motive  to  do  bodily  harm  on  either  side,  are  said  to  be  exercises  of 
this  description.  Fost.  C.  L.  259,  260;  Com.  Dig.  Plead.  3  m.  18. 
But  prize-fighting,  boxing-matches,  and  encounters  of  that  kind  serve 
no  useful  purpose,  tend  to  breaches  of  the  peace,  and  are  unlawful 
even  when  entered  into  by  agreement  and  without  anger  or  mutual  ill- 
will.     Fost.  C.  L.  260  ;  2  Greenl.  on  Ev.  §  85  :  1  Steubeus  N.  P.  211. 


216  REX   V.    STRATTON.  [CHAP.   III. 

If  one  party  license  another  to  beat  hira,  such  license  is  void,  because 
it  is  against  the  law.  Matthew  v.  Ollerton,  Comb.  218.  In  an  action 
for  assault  the  defendant  attempted  to  put  in  evidence  that  the  plain- 
tiff and  he  had  boxed  by  consent,  but  it  was  held  no  bar  to  the  action, 
for  boxing  was  unlawful,  and  the  consent  of  the  parties  to  fight  could 
not  excuse  the  injury.  Boulter  v.  Clark,  Bull.  N.  P.  16.  The*  same 
rule  was  laid  down  in  Stout  v.  Wren,  1  Hawks  (N.  C),  420,  and  in 
Bell  V.  Hansley,  3  Jones  (N.  C),  131.  In  Adams  v.  Waggoner,  33 
Ind.  531,  the  authorities  are  reviewed,  and  it  was  held  that  it  was  no 
bar  to  an  action  for  assault  that  the  parties  fought  with  each  other  by 
mutual  consent,  but  that  such  consent  may  be  shown  in  mitigation  of 
damages.  See  Logan  v.  Austin,  1  Stew.  (Ala.)  476.  It  was  said  by 
Coleridge,  J.,  in  Regina  v.  Lewis,  1  C.  &  K.  419,  that  "  no  one  is  justi- 
fied in  striking  another  except  it  be  in  self-defence,  and  it  ought  to  be 
known  that  whenever  two  persons  go  out  to  strike  each  other,  and  do 
so,  each  is  guilty  of  an  assault ;  "  and  that  it  was  immaterial  who 
strikes  the  first  blow.     See  Rex  v.  Perkins,  4  C.  &  P.  537. 

Two  cases  only  have  been  called  to  our  attention  where  a  diflferent 
rule  has  been  declared.  In  Champer  v.  State,  14  Ohio  St.  437,  it  was 
held  that  an  indictment  against  A.  for  an  assault  and  battery  on  B.  was 
not  sustained  by  evidence  that  A.  assaulted  and  beat  B.  in  a  fight  at 
fisticuffs,  by  agreement  between  them.  This  is  the  substance  of  the 
report,  and  the  facts  are  not  disclosed.  No  reasons  are  given  or  cases 
cited  in  support  of  the  proposition,  and  we  cannot  but  regard  it  as 
opposed  to  the  weight  of  authority.  In  State  v.  Beck,  1  Hill  (S.  C), 
363,  the  opinion  contains  statements  of  law  in  which  we  cannot  concur. 

Exceptions  overruled. 


SECTION  IV. 

Fault  of  the  Injured  Party, 

(d)    CONTRIBUTUKY    CrIME. 

REX  V.  STRATTON. 

Nisi  Prius.     1809. 

[Reported  1  Campbell,  549  ] 

Indictment  for  a  conspiracy  to  deprive  one  Thompson  of  the  office 
of  secretary  to  the  Philanthropic  Annuity  Society,  and  to  prosecute 


SECT.  IV.]  REGINA   V.   .  217 

him,  without  an\'  reasonable  or  probable  cause,  for  obtaining  money 
u[)Oii  false  pi'etences.  It  appeared  that  this  society  is  an  unincorpor- 
ated compan_y,  with  transferable  shares  ;  that  there  was  a  violent  dis- 
pute among  the  subscribers  as  to  tiie  choice  of  secretary  ;  that  one 
part}',  headed  by  the  defendants,  cashiered  the  prosecutor ;  that  he 
still  went  on  coUectuig  subscriptions,  and  that  they  indicted  him  for 
obtaining  mone}'  upon  false  pretences,  of  which  he  was  acquitted. 

Lord  ELLENBOKOU(;n.  This  society  was  certainly  illegal.  There- 
fore, to  deprive  an  individual  of  an  office  In  it,  cannot  be  treated  as  an 
injury.  When  the  prosecutor  was  secretar}'  to  the  society,  instead  of 
having  an  interest  which  the  law  would  protect,  he  was  guilty  of  a 
crime.  In  Dodd's  case,  all  the  judges  of  this  court  were  agreed  upon 
the  illegality  of  these  associations  ;  and  I  understand  there  has  since 
been  a  nonsuit  in  the  Common  Pleas  upon  the  same  ground.  Nor  can 
I  say  that  the  prosecutor  was  indicted  without  reasonable  or  probable 
cause.  I  thought  he  was  not  guiltv  of  the  offence  imputed  to  him  ;  be- 
cause it  did  not  appear  that  he  acted  with  a  fraudulent  purpose.  But 
he  did  obtain  the  money  upon  a  false  pretence.  He  pretended  that 
there  was  then  a  real,  legal  societ}',  to  which  he  was  secretary' ;  whereas 
no  such  society  existed.     The  defendants  must  all  be  acquitted.^ 


EEGINA  V. 


Central  Criminal  Court.    1845. 

[Reported  1  Cox  C.  C.  250.] 

The  defendant  was  indicted  for  uttering  counterfeit  coin.  Evidence 
was  adduced  to  show  that  he  had  given  a  counterfeit  sovereign  to  a 
girl  with  whom  he  had  had  Intercourse. 

Bodkin^  in  opening  the  case  for  the  prosecution,  referred  to  R.  v. 
Page,  8  C.  &  P.  122,  in  which  Lord  Abinger  ruled  that  the  giving  a 
piece  of  counterfeit  money  awa}'  in  charity  was  not  an  uttering  within  the 
2  Wm.  IV.  c.  34,  §  7,  although  the  person  giving  knew  it  to  be  coun- 
terfeit, as  thei'e  must  be  some  intention  to  defraud.  The  learned 
counsel  contended  that  the  present  case  was  clearly  distinguishable, 
even  supposing  that  to  be  the  law,  and  he  apprehended  that  the  ques- 
tion for  the  jury  would  be,  whether  the  coin  had  been  passed  with  a 
knowledge  of  its  being  counterfeit  and  with  the  intention  of  putting  it 
into  circulation. 

Lord  Denman,  C.  J.  (in  summing  up).  As  to  the  law  of  this  case, 
my  learned  brother  (Coltman,  J.)  and  myself  are  clearly  of  opinion 
that  if  the  defendant  gave  the  coin  to  the  woman  under  the  circum- 
stances stated,  knowing  it  to  be  counterfeit,  he  is  guilty  of  the  offence 

1  See  Rex  v.  Beacall,  3  C.  &  P.  454 ;  Reg.  v.  Hunt,  8  C.  &  P.  642 ;  Com.  v.  Smith, 
129  Mass.  104.  — Ed. 


218  REGINA   V.   HUDSON.  [CHAP.  III. 

charged.  We  do  not  consider  the  decision  of  Lord  Abinger  to  be  in 
point ;  that  was  a  case  of  charit}' ;  at  the  same  time  we  have  great 
doubts  as  to  the  correctness  of  that  ruling,  and  if  a  similar  case  were  to 
arise  we  should  reserve  the  point.  ^ 


REGINA  V.  HUDSON. 
Crown  Case  Reserved.     1860. 

[Reported  8  Cox  C.  C.  305  ] 

Case  reserved  for  the  opinion  of  this  court,  by  J.  B.  Maule,  Esq., 
barrister-at-law,  sitting  as  Deputy  for  the  Recorder  of  York. 

At  the  Epiphany  Sessions,  1860,  held  for  the  city  of  York,  the  pris- 
oners were  jointly  indicted  and  tried  before  me  upon  an  indictment,  the 
two  first  counts  of  which  charged  them  with  an  oflence  under  the  8  & 
9  Vict.  c.  109. 

Third  count.  The  prisoners  were  charged  with  a  conspiracy  to  cheat 
in  the  following  form  :  — 

"  That  they  unlawfully  and  fraudulently  did  combine,  confederate, 
and  conspire  together  with  divers  other  persons  to  the  jurors  unknown, 
by  divers  unlawful  and  fraudulent  devices  and  contrivances,  and  by 
divers  false  pretences,  unlawfully  to  obtain  from  the  said  A.  Rhodes 
the  sum  of  £2  10s.  of  the  money  of  the  said  A.  Rhodes,  and  unlaw- 
fully to  cheat  and  defraud  the  said  A.  Rhodes  of  the  same,  against  the 
peace,  etc."^ 

The  evidence  disclosed  that  the  three  prisoners  were  In  a  public  house 
together  with  the  prosecutor,  Abraham  Rhodes,  and  that  in  concert 
witii  the  other  two  prisoners,  the  prisoner  John  Dewhirst  placed  a  pen- 
case  on  the  table  in  the  room  where  they  were  assembled  and  left  the 
room  to  get  writing-paper.  Whilst  he  was  absent  the  other  two  pris- 
oners, Samuel  Hudson  and  John  Smith,  were  the  only  persons  left 
drinking  with  the  prosecutor ;  and  Hudson  then  took  up  the  pen-case 
and  took  out  the  pen  from  it,  placing  a  pin  in  the  place  of  it,  and  put 
tile  pen  that  he  had  taken  out  under  the  bottom  of  the  prosecutor's 
drinkiug-glass  ;  and  Hudson  then  proposed  to  the  prosecutor  to  bet  the 
prisoner  Dewhirst  when  he  returned  that  there  was  no  pen  in  the  pen- 
case.  The  prosecutor  was  induced  by  Hudson  and  Smith  to  stake  50s. 
in  a  bet  with  Dewhirst  upon  his  returning  into  the  room,  that  there  was 
no  pen  in  the  pen-case  ;  which  money  the  prosecutor  placed  on  the 
table,  and  Hudson  snatched  up  to  hold.     The  pen-case  was  then  tui-ned 

1  Ace.  Com.  V.  Woodbury,  Thach.  (Mass.)  47. 

2  Contra,  People  v.  Wilson,  6  Johns.  320.  —  Ed. 


SECT.  IV.]  KEGINA   V.   HUDSON.  219 

up  into  the  prosecutor's  hand,  and  another  pen  with  the  pin  fell  into 
his  hand,  and  tlion  tiie  prisoners  took  his  money. 

Upon  this  evidence  it  was  objected,  on  beluilf  of  the  prisoners,  that 
no  offence  within  the  meaning  of  the  8  &  9  Vict.  c.  109,  was  proved  b)- 
it,  and  that  the  facts  proved  in  evidence  did  not  amount  to  the  offence 
charged  in  the  third  count. 

I  thought  tlie  objection  well  founded  as  to  the  offence  under  the  8  & 
9  Vict.  c.  109,  but  held  that  the  facts  in  evidence  amounted  to  the 
offence  charged  in  the  third  count,  and  directed  the  jury  to  return  a 
separate  verdict  on  each  count,  a  case  having  been  asked  for  by  the 
prisoners'  counsel,  for  the  consideration  of  the  Court  for  Crown  Cases 
Reserved. 

The  jury  returned  a  verdict  of  guilt\'  on  each  of  the  three  counts. 

The  prisoners  were  sentenced  to  eight  months'  imprisonment,  and 
committed  to  prison  for  want  of  sufficient  sureties. 

If  the  court  for  the  consideration  of  Crown  Cases  Reserved  shall  be 
of  opinion  tiiat  the  above  facts  in  evidence  constituted  in  law  any  one 
of  the  offences  charged  m  the  indictment,  and  was  evidence  to  go  to  the 
jury  in  support  thereof,  tlie  verdict  is  to  stand  for  such  of  the  counts  in 
whicli  the  offence  is  laid  to  which  the  evidence  applies. 

Price,  for  the  prisonei's.  As  to  the  third  count,  to  sustain  that  the 
evidence  should  have  shown  such  a  false  pretence  as  j)er  se  would  con- 
stitute the  ordinary  misdemeanor  of  false  pretences. 

Pollock,  C.  B.     Why  so?     This  Is  a  count  for  conspiracy'  to  cheat 

Price.     Yes,  by  false  pretences. 

Channell,  B.  If  the  count  had  said  merely  to  conspire,  and  had 
omitted  the  words  "  b}-  false  pretences,''  it  would  have  been  good. 

Blackburn,  J.  Here  the  prisoners  cheated  the  prosecutor  into  the 
belief  that  he  was  going  to  cheat,  when  in  fact  he  was  to  be  cheated. 

Price.  This  is  a  mere  private  deceit,  not  concerning  the  public,  which 
the  criminal  law  does  not  regard,  but  is  a  deceit  against  which  common 
prudence  might  be  guarded.  There  is  no  evidence  of  any  indictable 
combination  to  cheat  and  defraud. 

Channell,  B.  If  two  persons  conspire  to  puff  up  the  qualities  of  a 
horse  and  thereby  secure  an  exorbitant  price  for  it,  that  is  a  criminal 
offence. 

Price.  That  affects  the  public.  At  the  trial  the  present  case  was 
likened  to  that  of  Rex  v.  Barnard,  7  C.  &  P.  784,  where  a  person  at 
Oxford,  who  was  not  a  member  of  the  universit}-,  went  for  the  purpose 
of  fraud,  wearing  a  commoner's  gown  and  cap,  and  obtained  goods. 
This  was  held  a  sufficient  false  pretence.  The  present  case,  however, 
was  nothing  more  tlian  a  bet  on  a  question  of  fact,  which  the  prosecu- 
tor might  have  satisfied  himself  of  by  looking  at  the  pencil-case.  It  is 
more  like  an  ordinary  conju ring-trick.  Besides,  here  the  prosecutor 
himself  intended  to  cheat  one  of  the  prisoners  by  the  bet. 

No  counsel  appeared  for  the  prosecution. 


220  COMMONWEALTH    V.    MOREILL.  [CHAP.  III. 

Pollock,  C.  B.  We  are  all  of  opinion  that  the  conviction  on  the 
third  count  is  good  and  ought  to  be  supported.  The  count  is  in  the 
usual  form,  and  it  is  not  necessary  that  the  words  ''false  pretences" 
stated  in  it  should  be  understood  in  the  technical  sense  contended  for 
by  Mr.  Price.  There  is  abundant  evidence  of  a  conspiracy  by  the  pris- 
oners to  cheat  the  prosecutor,  and  though  one  of  the  ingredients  in  the 
case  is  that  the  prosecutor  himself  intended  to  cheat  one  of  the  prisoners, 
that  does  not  prevent  the  prisoners  from  liability  to  be  prosecuted  upon 
this  indictment.  Conviction  affirmed. 


COMMONWEALTH  v.  MORRILL. 
Supreme  Judicial  Court  op  Massachusetts.     1851. 

[Reported  8  Cashing,  571.] 

This  was  an  indictment  which  alleged  that  the  defendants,  Samuel 
G.  Morrill  and  John  M.  Hodgdon,  on  the  17th  of  September,  1850,  at 
NewbuiTport,  "•  devising  and  intending  one  James  Lynch  by  false  pre- 
tences to  cheat  and  defraud  of  his  goods,  did  then  and  there  unlawfully, 
knowingl}',  and  designedly  falsely  pretend  and  represent  to  said  Lynch 
that  a  certain  watch  which  said  Morrill  then  and  there  had,  and  which 
said  Morrill  and  Hodgdon  then  and  there  proposed  and  offei'ed  to  ex- 
change with  said  Lynch  for  two  other  watches  belonging  to  snid  Lynch, 
was  a  gold  watch  of  eighteen  carats  fine  and  was  of  great  vahio,  to  wit, 
of  the  value  of  eight}-  dollars;  and  the  said  Lynch,  then  and  there  be- 
lieving the  said  false  pretences  and  representations  so  made  as  afore- 
said by  said  Morrill  and  Hodgdon,  and  being  deceived  thereby,  was 
induced  by  reason  of  the  false  pretences  and  representations  so  made 
as  aforesaid  to  deliver,  and  did  then  and  there  deliver,  to  the  said  Mor- 
rill the  two  watches  aforesaid,  belonging  to  said  Lynch,  and  of  the  value 
of  twenty  dollars,  and  the  said  Morrill  and  Hodgdon  did  then  and  there 
receive  and  obtain  the  two  said  watches,  the  property  of  said  Lj-nch, 
as  aforesaid,  in  exchange  for  the  said  watch,  so  represented  as  a  gold 
watch  as  aforesaid,  b}'  means  of  the  false  pretences  and  representa- 
tions aforesaid,  and  with  intent  to  cheat  and  defraud  the  said  Lynch  of 
his  said  two  watches,  as  aforesaid  ;  whereas  in  truth  and  in  fact  said 
watch  so  represented  by  said  Morrill  and  Hodgdon  as  a  gold  watch, 
eighteen  carats  fine,  and  of  the  value  of  eighty  dollars,  was  not  then 
and  there  a  gold  watch,  and  was  not  then  and  there  eighteen  carats 
fine,  and  was  then  and  there  of  trifling  value,"  etc. 

At  the  trial  in  the  Court  of  Common  Pleas,  before  Hoar,  J.,  it  ap- 
peared in  evidence  that  Lynch  represented  his  watches,  one  of  whicli 
was  of  silver  and  tlie  other  of  yellow  metal,  as  worth  fifty  dollars  ;  and 
on  the  testimony  of  the  only  witness  for  the  Commonwealth  who  was  a 
judge  of  the  value  of  watches,  the^'  were  worth  not  exceeding  fifteen 


SECT,  IV.]  COMMONWEALTH    V.    MORRILL.  221 

dollars.  Lynch  testified  that  his  silver  watch  cost  him  fifteen  dollars  ; 
that  he  received  the  other  in  exchange  for  two,  which  cost  him  respec- 
tivel}'  seven  dollars  and  thirteen  dollars  ;  and  that  he  believed  it  to  be 
worth  thirty  dollars. 

The  defendant  requested  the  presiding  judge  to  instruct  the  jury  that 
if  Lyncli's  watches  were  not  worth  fifty  dollars,  or  some  considerable 
part  of  that  sum,  but  were  of  merely  trifling  value,  this  indictment 
could  not  be  maintained.  But  the  judge  instructed  the  jury  that  if  they 
supposed  that  each  of  the  parties  was  endeavoring  to  defraud  the  other, 
and  Lynch  knew  that  his  watches  were  of  little  value,  the  jury  should 
not  convict  the  defendants  merely  because  they  had  the  best  of  the  bar- 
gain ;  but  that  if  the  defendants  made  the  false  representations  charged 
in  the  indictment,  with  the  intent  to  defraud,  knowing  them  to  be  false, 
and  the}'  were  such  as  would  mislead  and  deceive  a  man  of  ordinarj- 
prudence,  and  Lynch,  by  reason  of  the  representations,  and  trusting  in 
them,  parted  with  his  property  and  was  defrauded,  it  was  not  necessary 
to  show  that  he  was  defrauded  to  the  extent  charged  in  the  indictment, 
provided  he  in  good  faith  parted  with  property  which  he  believed  to  be 
valuable,  and  was  defrauded  to  any  substantial  amount,  for  example, 
to  the  amount  of  five  dollars  ;  and  that  the  defendants  might  be  con- 
victed, although,  from  the  mistake  of  Lynch  in  over-estimating  his 
property,  he  might  not  have  been  cheated  to  so  great  an  extent  as  he 
at  the  time  supposed. 

The  jury  found  the  defendants  guilty,  who  thereupon  moved  in  arrest 
of  judgment,  on  the  ground  that  the  indictment  was  insufficient:  and 
this  motion  being  overruled,  they  alleged  exceptions  to  the  order  of  the 
court,  overruling  the  same,  and  also  to  the  instructions  aforesaid. 

W.  C.  Endicott,  for  the  defendant. 

Clifford^  Attorney-General,  for  the  Commonwealth. 

Dewey,  J.-^  The  exceptions  taken  to  the  instructions  of  the  presid- 
ing judge  cannot  be  sustained.  If  it  were  true  that  the  party  from 
whom  the  defendants  obtained  goods  by  false  pretences  also  made 
false  pretences  as  to  his  goods  which  he  exchanged  with  the  defend- 
ants, that  would  be  no  justification  for  the  defendants,  when  put  on 
trial  upon  an  indictment  charging  them  with  obtaining  goods  by  false 
pretences,  knowingly  and  designedly  in  violation  of  a  statute  of  this 
Commonwealth.  Whether  the  alleged  misrepresentation  of  Lynch, 
being  a  mere  representation  as  to  the  value  or  worth  of  a  certain  watch 
and  an  opinion  rather  than  a  statement  of  a  fact,  would  be  such  false 
pretence  as  would  render  him  amenable  to  punishment  under  tliis 
statute,  might  be  questionable  ,  but  supposing  that  to  be  otherwise,  and 
it  should  appear  that  Lynch  had  also  violated  the  statute,  that  would 
not  justify  the  defendants.  If  the  other  party  has  also  subjected  him- 
self to  a  prosecution  for  a  like  offence,  he  also  may  be  punished.     This 

1  Part  of  the  opinion,  referring  to  a  question  of  pleading,  is  omitted. 


222  McCORD   V.    PEOPLE.  [CHAP.  III. 

would  be  much  better  than  that  both  should  escape  punishment  because 
each  deserved  it  equally.^ 


McCORD  V.  PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  46  New  York,  470.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  depart- 
ment to  review  judgment,  affirming  judgment  of  the  Court  of  General 
Sessions  in  and  for  the  Count}'  of  New  York,  convicting  the  plaintiff  in 
error  upon  an  indictment  for  false  pretences. 

The  plaintiff  in  error,  Henr}-  McCord,  was  tried  and  convicted  in  the 
Court  of  General  Sessions  of  the  Peace,  in  and  for  the  County  of  New 
York,  at  the  June  term,  1870,  upon  an  indictment  charging  in  sub- 
stance that  with  intent  to  cheat  and  defraud  one  Charles  C.  Miller,  he 
falsely  and  fraudulently  represented.  — 

"•  That  he,  the  said  Henry  McCord,  was  an  officer  attached  to  the 
bureau  of  Captain  Jolin  Young's  department  of  detectives,  and  that  he 
had  a  warrant  issued  by  Justice  Hogan,  one  of  the  police  justices  of 
the  city  of  New  York,  nt  the  complaint  of  one  Henr}'  Brinker,  charging 
the  said  Charles  C.  IMillcr  with  a  criminal  offence  and  for  his  arrest; 
and  that  the  said  Henry  Hrinker  had  i)romised  him,  the  said  Henry 
McCord,  $200  for  the  arrest  of  him,  the  said  Charles  C.  Miller." 

And  that  said  Miller,  believing  such  false  representations,  was  in- 
duced to  and  did  deliver  to  McCord  a  gold  watch  and  a  diamond  riiig.^ 

Per  Curiam.  If  the  prosecutor  parted  witli  his  property  upon  the 
representations  set  forth  in  tlie  indictment,  it  must  have  been  for  some 
unlawful  purpose,  a  purpose  not  warranted  b}-  law.  There  was  no 
legitimate  purpose  to  be  attained  by  delivering  the  goods  to  the  accused 
upon  the  statements  made  and  alleged  as  an  inducement  to  the  act. 
What  action  by  the  plaintiff  in  error  was  promised  or  expected  in 
return  for  the  property'  given  is  not  disclosed.  But  whatever  it  was,  it 
was  necessarily  inconsistent  with  his  duties  as  an  officer  having  a  crimi- 
nal warrant  for  the  arrest  of  the  prosecutor,  which  was  the  character 
he  assumed.  The  false  representation  of  the  accused  was  that  he  was 
an  officer  and  had  a  criminal  warrant  for  the  prosecutor.  Tliere  was 
no  pretence  of  an}-  agency  for  or  connection  with  any  person  or  of  any 
authority  to  do  an}-  act  save  such  as  his  duty  as  such  pretended  officer 
demanded. 

The  prosecutor  parted  with  his  property-  as  an  inducement  to  a  sup- 
posed officer  to  violate  the  law  and  his  duties  ;  and  if  in  attempting  to 

1  Ace.  Peo.  V.  Martin  (Cal  ),  36  Pac.  952;  Jn  re  Cummins,  16  Col.  451,  27  Pac. 
887.    Anrl  see  Com.  v.  Henry,  22  i'a.  253.  —  Ed. 

-  Arguments  of  counsel  and  tnc  uisseuting  opinion  of  PECKiiA:Nr.  J.,  are  omitted. 


SECT.  IV.J  STATE   V.    PATTERSON.  223 

do  lliis  he  lias  been  defrauded,  the  law  will  not  punish  his  confederate, 
although  such  confederate  nia>"  have  been  instrumental  in  inducing  the 
commission  of  the  offence.  Neither  the  law  or  public  policy  designs 
the  pi'otection  of  rogues  in  their  dealings  with  each  other,  or  to  insure 
fair  dealing  and  truthfulness  as  between  each  other  in  their  dishonest 
practices.  The  design  of  the  law  is  to  protect  those  who,  for  some 
honest  purpose,  are  induced  upon  false  and  fraudulent  representations 
to  give  credit  or  part  with  their  property  to  another,  and  not  to  protect 
those  who  for  unwortliy  or  illegal  purposes  part  with  their  goods.  Peo- 
ple V.  Williams,  4  Hilf,  9  ;  Same  v.  Stetson,  4  Barb.  151. 

The  judgment  of  the  Supreme  Court  and  of  the  Sessions  must  be 
reversed  and  judgment  for  the  defendant.^ 


STATE   V.   PATTERSON. 

Supreme  Court  of  Kansas.     1903. 

[Reported  66  Kan.  447.] 

BuRCH,  J.^  The  appellant  was  convicted  of  embezzlement  of  money 
which  came  into  his  hands  by  virtue  of  his  official  position  as  treasurer 
of  the  city  of  Clyde.  .  .  . 

The  defence  to  the  action  was  that  appellant  collected  the  money 
embezzled  from  persons  engaged  in  unlawful  traffic  in  intoxicating 
liquors  in  the  city  of  Clyde,  under  an  arrangement  between  such 
persons  and  the  city  whereby  immunity  from  prosecution  was  secured 
to  them.  Counsel  for  appellant  call  this  money  "blood-money"; 
characterize  its  collection  as  "robbery,"  and,  from  their  language, 
would  seem  to  regard  the  transaction  at  least  as  infamous  as  that  of  the 
thief  "  in  the  sacristy  with  the  fair  adornments,"  whom  Dante  located 
as  far  down  as  the  eighth  circle  of  hell.  And  because  of  the  utter 
indefensibility  of  the  conduct  of  the  city  and  of  the  appellant  under 
the  law,  it  is  claimed  he  cannot  be  punished  criminally.  The  defence 
is  applied  in  many  ways.  It  is  said  the  cit}'  could  not  authorize  the 
collection  of  such  money  ;  that  appellant  could  not  act  for  the  city 
in  such  business ;  that  he  did  not  act  as  city  treasurer,  or  by  virtue 
of  such  office,  and  could  exercise  no  official  conduct  in  such  an  affair ; 
that  money  received  by  him  from  such  source  could  not,  and  did  not, 
become  the  property  of  the  citj* ;  and  that,  if  it  did  become  the  city's 
money,  it  was  so  unclean  that  the  law  of  embezzlement  will  not  take 
cognizance  of  it.  The  district  court  excluded  all  evidence  relating  to 
this  defence.  In  this  it  was  correct.  The  defence  is  repugnant  to  law, 
to  morality,  and  even  to  expediency  in  the  regulation  of  the  conduct 
of  individuals  in  society. 

1  ^cc.  State  y.  Crowley,  41  Wis.  271.  But  see  Peo.  r.  Tompkius,  (N.  Y.),  79 
N.  E.  326.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


224  STATE   V.    PATTERSON.  [CHAP.  III. 

In  1852  the  Supreme  Court  of  Massachusetts,  in  deciding  that  money 
accumulated  by  the  illegal  sale  of  intoxicating  liquors  was  nevertheless 
the  subject  of  larceny,  said  : 

"That  same  common  law,  which,  in  its  integrity  and  wisdom,  re- 
fuses to  lend  itself  to  be  the  instrument,  even  indirectly,  for  the  execu- 
tion of  a  criminal  contract,  will  as  little  condescend  to  throw  its  mantle 
over  crime  itself.  The  law  punishes  larceny,  because  it  is  larceny; 
and,  therefore,  one  may  be  convicted  of  theft,  though  he  do  but  steal 
his  own  property,  from  himself  or  his  bailee.  7  H.  VI.  43«  ;  3  Co. 
Inst.  110.  And  the  law  punishes  the  larceny  of  property,  not  solely 
because  of  any  rights  of  the  proprietor,  but  also  because  of  its  own 
inherent  legal  rights  as  property ;  and,  therefore,  even  he,  who  larcenl- 
ously  takes  the  stolen  object  from  a  thief  whose  hands  have  but  just 
closed  upon  it,  may  himself  be  convicted  therefor,  in  spite  of  the 
criminality  of  the  possession  of  his  immediate  predecessor  in  crime. 
This  principle  is  coeval  with  the  common  law  itself  as  a  collection  of 
received  opinions  and  rules,  for  we  have  to  go  back  to  the  Year-books 
to  find  its  first  judicial  announcement.  The  leading  decision  is  the 
case  of  a  so-called  John  at  Stile,  in  13  Edw.  IV,  36,  where  it  was 
held  by  the  judges  that  if  A.  steal  the  goods  of  B.,  and  afterwards 
C.  steal  the  same  goods  from  A.,  in  such  case  C.  is  indictable  both  as 
to  A.  and  as  to  B.  This  decision  was  afterwards  aflarmed  arguendo  in 
4  Hen.  VII  56. 

"  We  do  not  say  our  doctrine  is  good  law,  merely  because  it  was  in 
principle  so  adjudged  in  the  time  of  the  Plantagenets  and  the  Tudors ; 
but  we  say  it  is  good  law,  also,  because  it  is  reasonable  and  just ; 
because  ever}-  subsequent  authority  in  England,  such  as  Hale,  1  Hale, 
P.  C.  (Am.  ed.)  507;  East.  2  East,  P.  C.  654;  Russell,  2  Russ.  on 
Crim.  (6th  Am.  ed.)  89,  has  adopted  and  approved  it;  because  it  has 
been  affirmed  by  modern  judicial  opinion  in  England  ;  Wilkin's  Case, 
2  Leach,  586  ;  because  it  has  already  been  recognized  in  the  United 
States;  Ward  v.  The  People,  3  Hill,  396;  and  because  it  thus  bears 
that  genuine  stamp  of  venerable  time,  which  consists,  not  in  the 
antiquity  of  date  —  for  there  may  be  old  errors  as  well  as  new  ones  — 
but  in  having  stood  the  test  of  the  scrutiny  of  many  successive 
ages.   .  .  . 

"  If,  looking  beyond  the  mere  question  of  property,  we  pass  to  con- 
siderations of  public  policy,  this  may  be  regarded  in  two  points  of  view, 
one,  of  convenience  in  the  administration  of  justice,  the  other,  of  higher 
ethical  relation.  As  to  the  former  point,  it  is  not  easy  to  conceive  any- 
thing which  would  more  seriously  embarrass  the  public  ministers  of 
justice,  and  obstruct  its  administration,  than  if  it  were  held  that  any 
element  of  illegality  in  the  acquisition  of  property  rendered  it  incapa- 
ble of  being  the  subject  of  larceny,  and  if,  as  a  consequence,  the 
necessity  followed,  in  every  case,  to  go  into  the  inquiry  how  the  party 
complaining  acquired  the  property. 


SECT.  JV.]  STATE  V.    PATTERSOX.  225 

"  As  to  the  latter  point,  if  the  question  be  put  in  the  form  niost 
favorable  to  the  argument  for  the  defendant  here,  it  stands  thus  :  of 
the  alternative  moral  and  social  evils,  which  is  the  greater  —  to  deprive 
property  unlawfully  acquired  of  all  protection  as  such,  and  thus  to  dis- 
courage unlawful  acquisition  but  encourage  larcen}' ;  or  to  punish,  and 
so  discourage  larceny,  though  at  the  possible  risk  of  thus  omitting 
so  fqr  forth  to  discourage  unlawful  acquisition?  The  balance  of  public 
polic}",  if  we  thus  attempt  to  estimate  the  relative  weight  of  alternative 
evils,  requires,  it  seems  to  us,  that  the  larcen}'  should  be  punished. 
Each  violation  of  law  is  to  be  dealt  with  by  itself.  The  felonious  tak- 
ing has  its  appropriate  and  specific  punishment;  so  also  has  the 
unlawful  acquisition."     (Commonwealth  v.  Rourke,  10  Cush.  397.) 

Such  is  the  law  both  of  larceny  and  embezzlement  in  the  United 
States.  (State  v.  Cloutman,  61  N.  H.  143  ;  Commonwealth  v.  Smith, 
129  Mass.  104;  Commonwealth  y.  Cooper,  130  id.  285;  Woodward  v. 
The  State,  103  Ind.  127,  2  N.  E.  321 ;  Stave  v.  O'Brien,  94  Tenn.  79, 
28  S.  W.  311,  26  L.  R.  A.  252;  People  v.  Hawkins,  106  Mich.  479, 
64  N.  W.  736  ;  The  State  v.  Shadd,  80  Mo.  358  ;  Miller  &  Smith  v. 
The  Commonwealth,  78  Ky.  15,  39  Am.  Rep.  194  ;  The  State  of  Iowa 
V.  May,  20  Iowa,  305  ;  Bales  v.  The  State,  8  W.  Va.  685  ;  State  v. 
Littschke,  27  Ore.  189,  40  Pac.  167;  Hertzler  v.  Geigley,  196  Pa.  St. 
419,  46  Atl.  366,  79  Am.  St.  Rep.  724.) 

Crime  does  Indeed  beget  crime,  but  such  progeny  cannot  justify  itself 
before  the  law  by  its  hideous  and  hateful  parentage. 

The  judgment  of  the  district  court  is  therefore  aflQrmed.  All  the 
Justices  concurring. 


226  EEGINA   V.    HOLLAND,  [CHAP.  IIL 


SECTION  V. 

Negligence  of  the  Injured  Party. 

REGINA  V.  HOLLAND. 

Liverpool  Assizks.    1841. 

\Reported  2  Moody  Sf  Robinson,  351.] 

Indictment  for  murder.  The  prisoner  was  charged  with  inflicting 
divers  mortal  blows  and  wounds  upon  one  Thomas  Garland,  and 
(among  others)  a  cut  upon  one  of  his  fingers. 

It  appeared  by  the  evidence  that  the  deceased  had  been  waylaid  and 
assaulted  by  the  prisoner,  and  that,  among  other  wounds,  he  was 
severely  cut  across  one  of  his  fingers  by  an  iron  instrument.  On  being 
brought  to  the  infirmary,  the  surgeon  urged  him  to  submit  to  the  ampu- 
tation of  the  finger,  telling  him,  unless  it  were  amputated,  he  considered 
that  his  life  would  be  in  great  hazard.  The  deceased  refused  to  allow 
the  finger  to  be  amputated.  It  was  thereupon  dressed  by  the  surgeon, 
and  the  deceased  attended  at  the  infirmary  from  day  to  day  to  have  his 
wounds  dressed;  at  the  end  of  a  fortnight, however,  lock-jaw  came  on, 
induced  by  the  wound  on  the  finger ;  the  finger  was  then  amputated, 
but  too  late,  and  the  lock-jaw  ultimately  caused  death.  The  surgeon 
deposed  that  if  the  finger  had  been  amputated  in  the  first  instance,  he 
thought  it  most  probable  that  the  life  of  the  deceased  would  have  been 
preserved. 

For  the  prisoner,  it  was  contended  that  the  cause  of  death  was  not 
the  wound  inflicted  by  the  prisoner,  but  the  obstinate  refusal  of  the 
deceased  to  submit  to  proper  surgical  treatment,  by  which  the  fatal 
result  would,  according  to  the  evidence,  have  been  prevented. 

Maule,  J.,  however,  was  clearly  of  opinion  that  this  was  no  defence, 
and  told  the  jury  that  if  the  prisoner  wilfully,  and  without  any  justifi- 
able cause,  inflicted  the  wound  on  the  party,  which  wound  was  ulti- 
mately the  cause  of  death,  the  pi-isoner  was  guilty  of  murder  ;  that  for 
this  purpose  it  made  no  difference  whether  the  wound  was  in  its  own 
nature  instantly  mortal,  or  whether  it"  became  the  cause  of  death  by 
reason  of  the  deceased  not  having  adopted  the  best  mode  of  treatment ; 
the  real  question  is  whether  in  the  end  the  wound  inflicted  by  the 
prisoner  was  the  cause  of  death.  Guilty.^ 

1  Ace.  Com.  V.  Hackett,  2  All.  136.  — Ed. 


SECT,  v.]  REGINA    V.   KEW.  227 


REGINA  V.  KEW. 
Suffolk  Assizes.     1872. 

[Reported  12  Cox  C.  C.  .355.] 

The  prisoners  were  indicted  for  manslaughter.  It  appeared  that  on 
the  2d  of  June  the  prisoner,  Jackson,  who  was  in  the  employ  of  Mr. 
Harris,  a  farmer,  was  instructed  to  take  his  master's  horse  and  cart 
and  drive  the  prisoner  Kew  to  the  Bungay  railway  station.  Being  late 
for  the  train,  Jackson  was  driving  at  a  furious  rate,  at  full  gallop,  and 
ran  over  a  child  going  to  school  and  killed  it.  It  was  about  two  o'clock 
in  the  afternoon,  and  there  were  four  or  five  little  children  from  five  to 
seven  years  of  age  going  to  school  unattended  by  any  adult. 

Metcalfe  and  Simms  Reeve,  for  the  prisoners,  contended  that  there 
was  contributor}'  negligence  on  behalf  of  the  child  running  on  the  road, 
and  that  Kew  was  not  liable  for  tlie  acts  of  another  man's  servant,  ha 
having  no  control  over  the  horse  and  not  having  selected  either  the 
horse  or  the  driver. 

Byles,  J.,  after  reading  the  evidence,  said  :  Here  the  mother  lets  her 
child  go  out  in  the  care  of  another  child  only  seven  years  of  age,  and 
the  prisoner  Kew  is  in  the  vehicle  of  another  man,  driven  by  another 
man's  servant,  so  not  onh'  was  Jackson  not  his  servant  but  he  did  not 
even  select  him.  It  has  been  contended  if  there  was  contributory  negli- 
gence on  the  children's  part,  then  the  defendants  are  not  liable.  No 
doubt  contributor}'  negligence  would  be  an  answer  to  a  civil  action. 
But  who  is  the  plaintitl"  here?  The  Queen,  as  representing  the  nation  ; 
and  if  the}'  were  all  negligent  together  I  think  tlieir  negligence  would 
be  no  defence,  even  if  they  had  been  adults.  If  they  were  of  opinion 
that  the  prisoners  were  driving  at  a  dangerous  pace  in  a  culpably  negli- 
gent manner,  then  they  are  guilty.  It  was  true  that  Kew  was  not 
actually  driving,  but  still  a  word  from  him  might  have  prevented  the 
accident.  If  necessar}'  he  would  reserve  the  question  of  contributory 
negligence  as  a  defence  for  the  Court  of  Criminal  Appeal. 

The  jury  acquitted  both  prisoners.^ 

1  Ace.  Reg.  V.  Longbottoni,  3  Cox  C  C.  439  ;  Belk  v.  People,  125  III.  .084  ;  Crura 
V.  state,  64'  Miss.  1,  I'So.  1.     But  see  Reg.  v.  Biichall,  4  F.  &  F.  1087.  —  Ed. 


228  COMMONWEALTH   V.    SLATTERY.  [CHAP.  Ul 

SECTION    VI. 
Condonation. 

4  Bl.  Com.  133.  Theft  bote  is  where  the  party  robbed  not  only 
knows  the  felon,  but  also  takes  his  goods  again,  or  other  amends  upon 
agreement  not  to  prosecute.  This  is  frequently  called  compounding  of 
felony  ;  and  formerly  was  held  to  make  a  man  an  accessory  ;  but  it  is 
now  punished  only  with  fine  and  imprisonment.  This  perversion  of 
justice,  in  the  old  Gothic  constitutions,  was  liable  to  the  most  severe 
and  infamous  punishment.  And  the  Salic  law  ''■latroni  eum  similem 
hahuit,  qui  fertum  celare  vellet,  et  occulte  sine  Jiidice  compositio7iem 
ejus  admittere.'"  By  statute  25  Geo.  II.  c.  36,  even  to  advertise  a  re- 
ward for  the  return  of  things  stolen,  with  no  questions  asked,  or  words 
to  the  same  purport,  subjects  the  advertiser  and  the  printer  to  a  forfeit- 
ure of  £50  each.^  1  Hawk.  P.  C.  ch.  7,  sect.  7.  But  the  bare  taking 
of  one's  own  goods  again  which  have  been  stolen  is  no  offence  at  all 
unless  some  favor  be  shown  to  the  thief. 


COMMONWEALTH   v.  SLATTERY. 
Supreme  Judicial  Court  of  Massachusetts.     1888. 

[Reported  147  ^fass.  423.] 

Indictment  for  rape  on  Bridget  Donovan.'^  At  the  ti'ial  in  the  Supe- 
rior  Court,  before  Dunbar,  J.,  the  defendant  asked  the  judge  to  instruct 
the  jury  "that,  if  said  Donovan  at  any  time  after  the  act  excused  or 
forgave  the  defendant,  then  she  ratified  the  act,  and  he  cannot  be  con- 
victed in  the  case."  The  judge  refused  so  to  instruct,  but  instructed 
the  jury  that  evidence  of  her  acts  and  conversation  with  the  defendant, 
both  before  and  after  the  commission  of  the  alleged  offence,  was  a  proper 
subject  for  their  consideration  in  determining  the  guilt  or  innocence  of 
the  defendant  at  the  time  of  its  commission.  The  defendant  alleged 
exceptions. 

W.  Allen,  J.  The  court  rightly  refused  to  give  the  instructions 
requested.  The  injured  party  could  not  condone  the  crime  by  excusing 
or  forgiving  the  criminal. 

1  See  Reg.  v.  Burgess,  1.5  Cox  C.  C.  779. 

2  Only  so  much  of  the  case  as  involves  the  question  of  condonation  is  printed. 


SECT.  VI.]  COMMONWEALTH    V.  KENNEDY.  229 

FLEENER  v.    STATE. 

Supreme  Couut  of  Arkansas.     1893. 

[Reported  58  Ar/c.  98.] 

BuNN,  C.  J.^  The  defendant,  A.  W.  Fleener,  was  indicted  at  the 
October  term,  1892,  of  the  St.  Francis  circuit  court,  for  the  crime  of 
embezzlement;  at  the  March  term,  1893,  found  guilty  and  sentenced  to 
nnprisonment  in  the  penitentiary  for  the  period  of  one  year.  Motions 
in  arrest  of  judgment  and  also  for  a  new  trial  were  overruled,  and 
appeal  taken  to  this  court. 

The  fourth  ground  of  the  motion  for  a  new  trial  is  a  novel  one.  The 
defendant  contends  that,  having  hired  the  guarantee  company  to  make 
his  bond  for  faithful  performance  of  duty  to  the  Pacific  Express  Com- 
pany, and  that  company  having  paid  the  express  company  for  all  losses 
claimed  by  it  to  have  been  suffered  by  reason  of  defendant's  alleged 
embezzlement,  therefore  there  was  no  crime  committed ;  that  the 
express  compan}-  had  no  longer  any  interest  at  stake,  and  even  that 
the  State  has  no  interest  in  the  matter.  In  this  the  defendant  is 
mistaken.  This  is  no  longer  a  controvers}'  between  himself  and 
the  two  companies,  or  either  of  them,  and  has  not  been  since  he  fraud- 
ulently appropriated  the  money  of  the  express  company,  if  indeed  he 
did  so  appropriate  it.  It  is  now  a  controversy  between  the  State  of 
Arkansas  and  himself,  which  the  State  will  not  permit  either  one  of  the 
said  companies  to  determine  at  present  or  in  the  future,  nor  will  the 
State  acknowledge  the  validity  of  any  settlement  of  it,  by  any  thing 
the}'  both,  or  either  of  them,  have  done  in  the  past. 


COMMONWEALTH    v.    KENNEDY. 

Supreme  Judicial  Court  of  Massachusetts.     1894. 

[Reported  IfiO  Mass.  312.] 

Complaint,  charging  the  defendant  with  violating  the  provisions  of 
Pub.  Sts.  c.  69,  §  5,  by  boarding  a  ship  without  obtaining  leave,  as 
therein  required. 

At  the  trial  in  the  Superior  Court,  before  Bond,  J.,  there  was  evi- 
dence tending  to  show  that  the  ship  was  unable  to  obtain  a  place  at 
a  wharf  as  desired,  and  was  obliged  to  anchor  in  the  harbor,  that  the 
captain  was  on  board  and  in  charge  of  the  vessel,  that  the  defendant 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


230  COMMONWEALTH   V.    KENNEDY.  [CHAP.  Ill, 

was  not  a  pilot  or  public  officer,  and  that  be  had  no  written  leave  from 
any  owner  or  agent  of  the  vessel  to  go  on  board. 

While  the  vessel  was  at  anchor  in  the  harbor,  the  defendant  went  on 
board,  and,  before  doing  any  business,  approached  the  captain  and 
obtained  permission  from  him  to  remain  on  board.  The  defendant  con- 
tended, and  asked  the  judge  to  rule,  that,  if  the  defendant  boarded  the 
vessel  intending,  before  he  engaged  in  any  business  on  board,  to  obtain 
leave  of  the  captain  to  remain,  and  he  did  obtain  such  leave  before  he 
engaged  in  any  business  on  board,  he  was  not  guilty  of  an}-  violation  of 
the  statute. 

The  judge  declined  so  to  rule,  and  instructed  the  jur}'  that  the 
statute  required  a  person  to  obtain  leave  of  the  master  or  person  in 
charge  of  the  vessel  before  going  on  board,  and  that  it  would  be  a  vio- 
lation of  the  statute  if  the  defendant  boarded  the  vessel  before  it  was 
made  fast  to  the  wharf  without  first  obtaining  leave  of  the  master  or 
person  in  charge. 

The  jury  returned  a  verdict  of  guilty  ;  and  the  defendant  alleged 
exceptions. 

Morton,  J.  "We  think  that  the  statute  in  question  must  be  con- 
strued as  if  it  read  "  without  first  having  obtained  leave  from  the 
master  or  person  having  charge  of  such  vessel,  or  without  first  having 
obtained  leave  in  writing  from  its  owners  or  agents."  Pub.  Sts.  c.  69, 
§  5.  The  statute  as  originally  enacted  was  intended  according  to  its 
title  "to  protect  mariners  and  shipowners  from  imposition"  (St.  1857, 
c.  139),  and  in  order  to  do  that  forbade  without  qualification  the  entrj' 
upon  a  vessel  before  it  was  made  fast  to  the  wharf  of  any  person  except 
a  pilot  or  public  officer,  without  having  obtained  leave  from  one  of  the 
persons  named  in  the  statute.  The  original  statute  was  re-enacted,  with 
slight  changes  in  phraseology,  in  Gen.  Sts.  c.  52,  §§  22  to  29  inclu- 
sive, excepting  §  26,  which  was  a  re-enactment  of  St.  1859,  c.  235,  and 
the  provisions  of  the  General  Statutes  were  incorporated  into  Pub.  Sts. 
c.  69,  §§  5  to  12  inclusive,  excepting  §  7,  which  was  a  re-enactment  of 
St.  1874,  c.  76.  The  offence  with  which  the  defendant  is  charged 
became  complete  upon  his  boarding  the  vessel  without  having  obtained 
the  Ifiave  which  the  statute  required,  no  matter  what  his  motive  was, 
and  vvitbout  regard  to  the  fact  that  permission  was  afterwards  given 
him  by  the  captain  to  remain  on  board.  Commonwealth  r.  Slattery, 
147  Mass.  423  ;  Commonwealth  v.  Tobin,  108  Mass.  426.  Cases  may 
be  supposed  where  the  application  of  this  rule  would  operate  with 
harshness,  but  thev  do  not  justif}'  us  in  departing  from  tlie  words  of 
the  statute.  Exci'iitions  overruled. 


SECT,  VI.]  COMMONWEALTH    V.    ST.   JOHN.  231 


COMMONWEALTH  v.    St.  JOHN. 
Supreme  Judicial  Court  of  Massachusetts.     1899. 

[Reported  1 73  Mass.  566.] 

Indictment,  against  Joseph  St,  John,  Albert  St.  Germaine,  and 
Eugene  Bernatchez,  charging  the  first  named  defendant,  on  May  31, 
1896,  at  Springfield,  with  unlawfiill}-  nsing  a  certain  instrument  in  and 
upon  the  body  of  a  woman  named,  with  intent  to  procure  a  miscarriage, 
and  thereby  causing  her  death  ;  and  charging  the  other  defendants  with 
being  accessories  before  the  fact. 

St.  Germaine,  in  support  of  his  plea  in  bar,  offered  to  show  that  he 
was  promised  and  pledged  by  the  city  marshal  of  Springfield,  who  was 
at  the  time  at  the  head  of  the  police  department  of  the  city,  and  by  one 
Boyle,  the  chief  detective  of  the  police  department,  and  who  were  iu 
the  preliminary  proceedings  the  prosecuting  oflBcers,  and  by  whom  a 
warrant  was  obtained  for  the  arrest  of  St.  Germaine,  that  if  he  would 
make  full  disclosure  and  confession  of  what  he  knew  with  reference  to 
the  abortion  alleged  to  have  been  performed  by  St.  John,  and  against 
whom  a  complaint  had  been  made  and  a  warrant  issued  from  the  police 
court  of  Springfield  for  such  ofl[ence,  as  principal,  and  if  St.  Germaine 
would  hold  himself  in  readiness  to  testify  and  would  testify  at  the  pre- 
liminary hearing  in  the  police  court  upon  the  complaint  and  warrant 
against  St.  John,  and  if  he  would  hold  himself  in  readiness  to  testify 
at  an3'  other  trial  or  hearing  with  reference  to  the  charge  against  St. 
John,  he  should  have  immunity  and  protection  from  the  crime  charged 
against  him  in  the  indictment. 

The  judge  ruled  that  the  evidence  offered  was  not  competent,  and 
excluded  the  same  ;  and  each  of  the  defendants  alleged  exceptions.^ 

Morton,  J,  The  decisive  question  iu  each  case  is  the  same,  and 
the  cases  may  therefore  properly  be  considered  together.  The  question 
is  whether  the  immunity  that  was  promised  to  the  defendants  by  the 
city  marshal  and  by  Boyle,  the  chief  detective  of  the  police  depart- 
ment of  Springfield,  can  be  pleaded  in  bar  of  the  indictment  against 
them.  We  think  that  it  cannot.  The  immunity  and  protection  which 
may  be  promised  from  the  consequences  of  crime  on  condition  of  a  full 
disclosure  and  readiness  to  testify  are  not  a  matter  of  right,  but  rest  in 
the  last  resort  on  the  sound  judicial  discretion  of  the  court  having  final 
jurisdiction  to  sentence,  and  cannot  therefore  be  pleaded  in  bar, 
Wright  V.  Rindskopf,  43  Wis.  344 ;  State  v.  Moody,  69  N,  C.  529  ; 
State  V.  Graham,  12  Vroom,  15  ;  Rex  v.  Rudd,  Cowp.  331 ;  Whart. 
Grim,  Ev.  §§  439.  443;  3  Russ.  Crimes  (9th  Am.  ed.),  599. 

When  such  promises  are  made  by  the  public  prosecutor  or  with  his 
authority,  the  court  will  see  that  due  regard  is  paid  to  them,  and  that 
the  public  faith  which  has  been  pledged  by  him  is  duly  kept.     The 

1  The  statement  of  facts  has  been  shortened.  —  Ed, 


232  IN    RE    LEWIS.  [chap.  III. 

prosecuting  officer  has  also  the  power  to  enter  a  nolle  prosequi.  It  ap- 
pears in  each  case  that  neither  the  city  marshal  nor  Boyle  had  any 
authorit}'  from  the  District  Attorney  to  make  the  promises  or  hold  out 
the  inducements  which  they  did.  There  is  nothing  in  either  bill  of  ex- 
ceptions tending  to  show  that  the  District  Attornej'  had  anything  to 
do  with  the  prosecution  in  the  police  court.  Neither  of  the  defendants 
appeared  before  the  grand  jurj",  although  they  were  at  the  court-house 
from  day  to  day  when  the  grand  jur}'  was  in  session,  i-eady  to  testify', 
relying  on  the  promises  of  immunit}-  made  by  the  cit}'  marshal  and  bj' 
Bo3'le.  And  there  is  nothing  tending  to  show  that  there  was  any  ex- 
pectation or  understanding  on  the  part  of  the  District  Attorney  that 
either  was  to  testify  as  a  government  witness  in  the  Superior  Court, 
and  neither  did  so  testify.  If  an  appeal  had  been  made  to  the  clem- 
ency of  the  court,  it  would  no  doubt  have  been  competent  for  the  court 
to  take  into  consideration  the  inducements  which  had  been  held  out 
and  the  promises  that  had  been  made,  if  any,  by  the  city  marshal  and 
b}'  Bo3le.  But  what  was  done  was  to  plead  the  promises  and  induce- 
ments in  bar.  A  question  of  law  was  thus  presented,  and  we  think 
that  the  ruling  of  the  court  was  clearly  right.     Exceptions  overruled. 


In  re  LEWIS. 

Supreme  Court  of  Kansas.     1903. 

[Reported  67  Kan.  562.] 

Mason,  J.^  Oscar  Lewis  was  arrested  on  a  warrant  issued  April  2, 
1903,  charging  him  with  having,  on  June  1,  1902,  obtained  illicit  con- 
nection, under  promise  of  marriage,  with  Nellie  Meador,  she  being  of 
good  repute  and  under  twenty-one  years  of  age.  Upon  a  preliminary 
examination  he  was  held  to  answer  the  charge.  It  was  shown  that  on 
November  27,  1902,  he  was  married  to  said  Nellie  Meador,  and  he  now 
asks  his  discharge  upon  habeas  corpus  on  the  ground  that  such 
marriage  is  a  complete  bar  to  the  prosecution.  The  state  claims,  and 
the  claim  is  supported  by  the  evidence,  that  the  defendant  abandoned 
his  wife  on  the  morning  after  the  marriage,  but  this  does  not  affect 
the  legal  aspect  of  the  matter. 

In  the  following  cases  it  has  been  held  that  a  subsequent  marriage 
is  a  bar  to  a  prosecution  for  seduction :  Commonwealth  v.  Eichar,  4 
Pa.  L.  J.  Rep.  326  ;  People  v.  Gould,  70  Mich.  240,  38  N.  W.  232, 
14  Am.  St.  Rep.  493;  The  State  v.  Otis,  135  Ind.  267,  24  N.  E.  954, 
21  L.  R.  A.  733.  The  law  is  so  stated  in  Wharton  on  Criminal 
Law,  10th  edition,  volume  2,  page  1760,  and  Lawson's  Criminal  De- 
fences, volume  5,  page  780.  These  statements  of  the  text-writers, 
however,   are  based  solely  upon  the  cases  just  cited,   and   therefore 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  VI.]  IN    RE    LEWIS.  233 

add  ittle  to  their  autliority.  The  INIichigan  and  Indiana  cases,  more- 
over, merely  followed  the  reasoning  in  Commonwealth  r.  Eichar, 
supra,  so  that  the  soundness  of  the  doctrine  in  principle  can  be  de- 
termined from  an  examination  of  the  opinion  in  that  case.  Its  full 
text  upon  this  point  is  as  follows : 

"  The  evidence  full}-  establishes  the  fact  that,  six  months  j)revious 
to  the  finding  of  this  indictment  b}'  the  grand  jury,  the  defendant 
was  legally  married  by  the  Rev.  Mr.  Rugan,  of  the  Lutheran  church, 
to  the  female  whom  lie  is  charged  with  having  seduced.  She  is  b}-  the 
laws  of  God  and  man  his  wife,  and  as  such  is  entitled  to  all  the  rights 
which  are  incident  to  that  relation.  Can  he  now  be  convicted  and 
punished  for  her  seduction  before  marriage?  It  is  not  the  carnal 
connection,  even  when  induced  by  the  solicitation  of  a  man,  that  is  the 
object  of  this  statutory  penalt}',  but  it  is  the  seduction  under  promise 
of  marriage  which  is  an  offence  of  so  grievous  a  nature  as  to  require 
this  exemplary  punishment.  What  promise?  One  that  is  kept  and 
performed?  Clearly  not,  but  a  false  promise,  broken  and  violated 
after  performing  its  fiendish  purpose.  The  evil  which  led  to  the  en- 
Hctment  was  not  that  females  were  seduced  and  tliou  made  tlie  wives 
of  the  seducer,  but  that  after  the  ends  of  the  seducer  were  accom- 
plished his  victim  was  abandoned  to  her  disgi-ace.  An  objection  to 
this  construction  is  that  it  places  within  the  power  of  the  seducer  a 
means  of  escaping  the  penalty.  So  be  it.  This  is  far  better  than 
b}-  a  contrary  construction  to  remove  the  inducement  to  a  faithful 
adherence  to  the  promise  which  obtained  the  consent." 

Our  attention  has  not  been  called  to  anj'  actual  adjudication  against 
this  doctrine,  nor  have  we  discovered  any.  However,  in  State  r.  Bierce, 
27  Conn.  319,  324,  in  considering  the  question  whether  it  could  be 
shown  in  defence  that  the  promise  of  marriage  was  made  in  good  faith, 
and  broken  only  b}-  reason  of  the  subsequent  misconduct  of  the 
complaining  witness,  the  court  said  : 

"■  Even  if  he  had  performed  his  promise  to  marry  her,  we  do  not  per- 
ceive how  it  could  plausibly  be  urged  that  it  would  be  any  answer  to 
the  charge  of  the  previous  seduction  ;  however,  such  partial  repara- 
tion might  be  viewed  as  a  circumstance  to  mitigate  the  punishment. 
As  to  the  claim  founded  on  the  misconduct  of  the  female  subsequent 
to  the  illicit  connection  between  her  and  the  defendant,  it  is  a  sufficient 
answer  that  the  offence  was  committed  and  complete  before  such 
misconduct  took  place,  and  that,  whatever  eflfect  it  might  have  upon  a 
claim  b}'  her  upon  him  for  the  breach  of  his  promise  of  marriage,  or 
however  it  might  be  considered  by  the  court  in  affixing  the  punish- 
ment for  the  offence  charged  upon  the  defendant,  it  could  not  relate 
back  to  render  legal  or  innocent  a  violation  of  the  statute  for  which 
he  had  already  become  amenable." 

In  State  ik  Wise,  32  Ore.  280,  282,  50  Pac.  800,  it  was  said  : 

"But,  as  we  take  it,  the  gravamen  of  the  oflTence  is  the  act  of  se- 
ducing  and    debauching    an   unmarried    female,    of  previous    chaste 


234  IN   RE   LEWIS.  [chap,  IH. 

character,  under  or  by  means  of  a  promise  of  marriage  ;  and  the 
crime  is  complete  as  soon  as  the  act  is  accomplished,  although  a 
subsequent  marriage  is  l\v  statute  a  bar  to  a  prosecution." 

In  People  v.  Hough,  120  Cal.  558,  52  Pac.  846,  65  Am.  St.  Rep. 
201,  the  court  held  : 

"When  a  man  induces  an  unmarried  female  of  previous  chaste 
character  to  submit  her  person  to  him  by  reason  of  a  promise  of  mar- 
riage upon  his  part,  the  seduction,  has  taken  place  —  the  crime  has 
been  committed.  The  succeeding  section,  which  provides  that  the 
marriage  is  a  bar  to  a  prosecution,  clearl}-  recognizes  that  the  crime  has 
been  committed  when  the  promise  has  been  made  and  the  intercourse 
thereunder  has  taken  place.  There  may  be  incidental  references  in 
some  cases  indicating  that  a  refusal  upou  the  i)art  of  the  man  to  cany 
out  the  promise  is  a  necessarj'  element  of  the  offence.  (People  v. 
Samonset,  97  Cal.  448,  32  Pac.  520;  State  v.  Adams,  25  Ore.  172,  35 
Pac.  36,  22,  L.  R.  A.  840,  42  Am.  St.  Rep.  790.)  But  such  is  not 
the  fact." 

In  Clark  and  Marshall's  Law  of  Crimes,  page  1122,  the  authors 
sav : 

"  By  express  provision  of  the  statutes  in  most  states,  the  subse- 
quent intermarriage  of  the  parties  is  a  bar  to  a  prosecution  for  seduc- 
tion. But  this  is  not  the  case  in  the  absence  of  such  a  provision, 
for,  as  was  shown  in  another  place,  the  person  injured  by  a  crime 
cannot  prevent  a  prosecution  by  afterwards  condoning  the  offence." 

Notwithstanding  the  authorities  cited  in  support  of  the  contention 
of  defendant,  we  are  not  disposed  to  yield  assent  to  it.  Being  based 
upon  the  Pennsylvania  case,  they  depend  for  their  force,  as  it  does, 
upon  the  soundness  of  the  reasoning  b\'  which  it  is  supported,  and 
this  reasoning  is  based  less  upon  the  language  of  the  statute  than 
upon  considerations  of  public  polic}',  and  the  decision  borders  upon 
judicial  legislation. 

While  the  following  language  of  Mr.  Justice  Johnston  in  The  State 
V.  Newcomer,  59  Kan.  668,  54  Pac.  685,  was  used  in  a  case  of  stat- 
utory rape,  it  is  equally  applicable  here,  and  is  a  satisfactory  refu- 
tation of  every  argument  advanced  in  the  opinion  in  the  Eichar 
case : 

"In  behalf  of  the  defendant  it  is  argued  that  the  evil  conse- 
quences of  the  unlawful  act  have  been  averted  V)3-  the  marriage  ;  that 
when  the  parties  to  the  act  voluntarih",  and  in  good  faith,  entered  into 
the  marriage  relation  the  offence  was  condoned,  and  that  the  welfare 
of  the  parties  and  their  offspring  requires  and  the  interest  of  the  public 
w-ill  be  best  subserved  by  the  ending  of  the  prosecution. 

"  The  difficult}'  with  this  contention  is  that  the  law  does  not  provide 
that  the  offence  ma}'  be  expiated  by  marriage  or  condoned  by  the 
injured  female.  Her  consent  to  the  sexual  act  constitutes  no  defence, 
and  neither  her  forgiveness  nor  anj'thing  which  either  or  both  will  do 
will  take  away  the  criminal  quality  of  the  act  or  relieve  the  defendant 


SECT.  VI.  "I  IN    RE   LEWIS.  235 

from  the  consequences  of  the  same.  The  principle  of  condonation 
which  obtains  iu  divorce  cases  where  civil  rights  are  involved  has  no 
application  in  prosecutions  brought  at  the  instance  of  the  state  for  the 
protection  of  the  public  and  to  punish  a  violation  of  the  law.  It  is 
true,  as  stated,  that  society  api)roves  the  act  of  the  defendant,  when 
he  endeavors  to  make  amends  for  the  wrong  done  the  Injured  female, 
by  marrying  her,  and  usually  a  good-faith  marriage  between  the  parties 
to  the  wrong  prevents  or  terminates  a  prosecution;  but  the  statute 
which  defines  the  offence  and  declares  punishment  therefor  makes  no 
such  provision.  If  the  defendant  has  acted  in  good  faith  in  marrying 
the  girl,  and  honestly  desires  to  perform  the  marital  obligation  resting 
upon  him,  and  is  prevented  from  doing  so  by  the  influence  and  inter- 
ference of  persons  other  than  his  wife,  it  may  constitute  a  strong 
appeal  to  the  prosecution  to  discontinue  the  same,  or  to  the  governor 
for  the  exercise  of  executive  clemency,  but  as  the  law  stands  it  furnishes 
no  defence  to  the  charge  brought  against  the  defendant." 

Moreover,  the  doctrine  of  the  Pennsylvania,  Michigan  and  Indiana 
courts,  if  accepted  as  sound,  would  not  necessarily  control  here,  since 
it  has  arisen  under  statutes  for  the  punishment  of  offences  that  include 
the  element  of  seduction,  properly  so  called,  and  the  decisions  support' 
Ing  it  are  based  to  some  extent  upon  that  fact.  The  Kansas  statute 
here  involved  (Gen.  Stat.  1901,  §  2021)  does  not  use  the  word 
"  seduce,"  and,  while  the  offence  it  creates  is  commonly  and  conven- 
iently called  "seduction,"  this  does  not  imply  that  the  term  is  techni- 
cally correct.  It  makes  criminal  the  act  of  obtaining  illicit  connection 
under  promise  of  marriage  with  any  female  of  good  reputation  under 
twenty-one  years  of  age.  This  does  not  constitute  seduction,  as  the 
word  is  used  in  the  statutes  of  other  states. 

We  hold  that  a  subsequent  marriage  to  the  injured  female  is  not  a 
bar  to  a  prosecution  under  section  2021  of  the  General  Statutes  of 
1901. 


236  EEGINA   V.   TOLSON.  [CHAP.  IV. 


CHAPTER  lY. 
CULPABILITY. 


SECTION  I. 

What  Crimes  Require  a   Guilty  Mind. 

EEGINA   V.   TOLSON. 
Crown  Case  Reserved.     1889. 

[Reported  23  Queen's  Bench  Division,  168.] 

Wills,  J.  In  this  case  the  prisoner  was  convicted  of  bigamy.  She 
married  a  second  time  within  seven  years  of  the  time  when  she  Last 
knew  of  her  husband  being  alive,  but  upon  information  of  his  death, 
which  the  jury  found  that  she  upon  reasonable  grounds  believed  to  be 
true,     A  few  months  after  the  second  marriage  he  reappeared. 

The  statute-  upon  which  the  indictment  was  framed  is  the  24  &  25 
Vict.  c.  100,  s.  57,  which  is  in  these  words:  "  Whoever,  being  mar- 
ried, shall  marry  any  other  person  during  the  life  of  the  former  husband 
or  wife  shall  be  guilty  of  felony,  punishable  with  penal  servitude  for 
not  more  than  seven  years,  or  imprisonment  with  or  without  hard 
labor  for  not  more  than  two  years,"  with  a  proviso  that  "  nothing  in 
this  Act  shall  extend  to  any  person  marrying  a  second  time  whose 
husband  or  wife  shall  have  been  continually  absent  from  such  person 
for  the  space  of  seven  years  last  past,  and  shall  not  have  been  known 
by  such  person  to  be  living  within  that  time." 

There  is  no  doubt  that  under  the  circumstances  the  prisoner  falls 
within  the  very  words  of  the  statute.  She,  being  married,  married 
another  person  during  the  life  of  her  former  husband,  and,  when  she 
did  so,  he  had  not  been  continually  absent  from  her  for  the  space  of 
seven  years  last  past. 

It  is,  however,  undoubtedly  a  principle  of  English  criminal  law,  that 
ordinarily  speaking  a  crime  is  not  committed  if  the  mind  of  the  person 
doing  an  act  in  question  be  innocent.  "  It  is  a  principle  of  natural 
justice  and  of  our  law,"  says  Lord  Kenyon,  C.  J.,  "  that  actus  non 
facit  reum,  nisi  mens  sit  rea.     The  intent  and  act  must  both  concur  to 


SECT.  I.]  liEGINA    V.    TOLSON.  237 

constitute  the  crime."  Fowler  v.  Padget,  7  T.  R.  509,  514.  The 
guilty  iutent  is  not  necessarily  that  of  intending  the  very  act  or  thing 
done  and  proliibited  by  common  or  statute  law,  but  it  must  at  least  be 
the  intention  to  do  something  wrong.  That  intention  may  belong  to 
one  or  other  of  two  classes.  It  may  be  to  do  a  thing  wrong  in  itself 
and  apart  from  positive  law,  or  it  may  be  to  do  a  thing  merely  prolii- 
bited by  statute  or  l)y  common  law,  or  both  elements  of  intention  may 
co-exist  with  respect  to  the  same  deed.  There  are  many  things  prohi- 
bited by  no  statute  —  fornication  or  seduction  for  instance  —  which 
nevertheless  no  one  would  hesitate  to  call  wrong  ;  and  the  intention  to 
do  an  act  wrong  in  this  sense  at  the  least  must  as  a  general  rule  exist 
before  the  act  done  can  be  considered  a  crime.  Knowingly  and  inten- 
tionally to  break  a  statute  must,  I  think,  from  the  judicial  point  of 
view,  always  be  morally  wrong  in  the  absence  of  special  circumstances 
applicable  to  the  particular  instance  and  excusing  the  breach  of  the 
law,  as,  for  instance,  if  a  municipal  regulation  be  broken  to  save  life 
or  to  put  out  a  fire.  But  to  make  it  morally  right  some  such  special 
matter  of  excuse  must  exist,  inasmuch  as  the  administration  of  jus- 
tice and,  indeed,  the  foundations  of  civil  society  rest  upon  the  prin- 
ciple that  obedience  to  the  law,  whether  it  be  a  law  approved  of  or 
disapproved  of  by  the  individual,  is  the  first  duty  of  a  citizen. 

Althougii  pr/>Ha /ac/e  and  as  a  general  rule  there  must  be  a  mind  at 
fault  before  there  can  be  a  crime,  it  is  not  an  inflexible  rule,  and  a 
statute  may  relate  to  such  a  subject-matter  and  may  be  so  framed  as 
to  make  an  act  criminal  whether  there  has  been  any  intention  to  break 
the  law  or  otherwise  to  do  wrong  or  not.  There  is  a  large  body  of 
municipal  law  in  the  present  day,  which  is  so  conceived.  By-laws  are 
constantly  made  regulating  the  width  of  thoroughfares,  the  height  of 
buildings,  the  thickness  of  walls,  and  a  variety  of  other  matters  neces- 
sary for  the  general  welfare,  health,  or  convenience,  and  such  by-laws 
are  enforced  by  the  sanction  of  penalties,  and  the  breach  of  them  con- 
stitutes an  offence  and  is  a  criminal  matter.  In  such  cases  it  would, 
generally  speaking,  be  no  answer  to  proceedings  for  infringement  of 
the  by-law  that  the  person  committing  it  had  bona  fide  made  an  acci- 
dental miscalculation  or  an  erroneous  measurement.  The  Acts  are 
properly  construed  as  imposing  the  penalty  when  the  act  is  done,  no 
matter  how  innocently,  and  in  such  a  case  the  substance  of  the  en- 
actment IS  that  a  man  shall  take  care  that  the  statutory  direction  is 
obeyed,  and  that  if  he  fails  to  do  so  he  does  it  at  his  peril. 

Whether  an  enactment  is  to  be  construed  in  this  sense  or  with  the 
qualification  ordinarily  imported  into  the  construction  of  criminal  stat- 
utes, that  there  must  be  a  guilty  mind,  must,  I  think,  depend  upon 
the  subject-matter  of  the  enactment,  and  the  various  circumstances 
that  may  make  the  one  construction  or  the  other  reasonable  or  unrea- 
sonable. There  is  no  difference,  for  instance,  in  the  kind  of  language 
used  by  Acts  of  Parliament  which  made  the  unautliorized  possession 
of  Government  stores  a  crime,  and  the  language  used  in  by-laws  which 


238  REGINA   V.    TOLSON.  [CHAP.  IV. 

say  that  if  a  man  builds  a  house  or  a  wall  so  as  to  encroach  upon  a 
space  protected  by  the  by-law  from  building  he  shall  be  liable  to  a 
penalty.  Yet  in  Reg.  v.  Sleep,  L.  &  C  44  ;  30  L.  J.  M.  C.  170,  it 
was  held  that  a  person  in  possession  of  Government  stores  with  the 
broad  arrow  could  not  be  convicted  when  there  was  not  sufficient  evi- 
dence to  show  that  he  knew  they  were  so  marked,  while  the  mere 
infringement  of  a  building  by-law  would  entail  liability  to  the  penalty. 
There  is  no  difference  between  tlie  language  by  which  it  is  said  that  a 
man  shall  sweep  the  snow  from  the  pavement  in  front  of  his  house 
before  a  given  hour  in  the  morning,  aud  if  he  fail  to  do  so,  shall  pay 
a  penalty,  and  that  by  which  it  is  said  that  a  man  sending  vitriol  by 
railway  shall  mark  the  nature  of  the  goods  on  the  package  on  pain  of 
rorfeiting  a  sum  of  money  ;  and  yet  1  suppose  that  in  the  first  case 
ihe  penalty  would  attach  if  the  thing  were  not  done,  while  in  tlie  other 
;ase  it  has  been  held  in  Heme  v.  Garton,  2  E.  «&  E.  66,  that  where  the 
jender  had  made  reasonable  inquiry  and  was  tricked  into  the  belief 
jhat  the  goods  were  of  an  innocent  character,  he  could  not  be  con- 
victed, although  he  had  in  fact  sent  the  vitriol  not  properly  marked. 
There  is  uo  difference  between  the  language  by  which  it  is  enacted 
that  "whosoever  shall  unlawfully  and  wilfully  kill  any  pigeon  under 
5uch  circumstances  as  shall  not  amount  to  a  larceny  at  common  law  " 
ihall  be  liable  to  a  penalty,  and  the  language  by  which  it  is  enacted 
that  "  if  any  person  sliall  commit  any  trespass  by  entering  any  land 
in  the  daytime  in  pursuit  of  game  "  he  shall  be  liable  to  a  penalty  ;  and 
yet  in  the  first  case  it  has  been  held  that  his  state  of  mind  is  material: 
Taylor  v.  Newman,  4  B.  &  S.  89  ;  in  the  second  that  it  is  immaterial : 
Watkins  v.  Major,  L.  R.  10  C  P.  662.  So,  again,  there  is  no  differ- 
ence in  language  between  the  enactments  I  have  referred  to  in  which 
the  absence  of  a  guilty  mind  was  held  to  be  a  defence,  and  that  of  the 
statute  which  says  that  "  any  person  who  shall  receive  two  or  more 
lunatics  "  into  any  unlicensed  house  shall  be  guilty  of  a  misdemeanor, 
under  which  the  contrary  has  been  held  :  Reg.  v.  Bishop,  5  Q.  B.  D. 
25<J.  A  statute  provided  that  any  clerk  to  justices  who  should,  under 
color  and  pretence  of  anything  done  by  the  justice  or  the  clerk,  receive 
a  fee  greater  than  that  provided  for  by  a  certain  table,  should  for 
every  such  offence  forfeit  £20.  It  was  held  that  where  a  clerk  to 
justices  bona  fide  and  reasonably  but  erroneously  believed  that  there 
were  two  sureties  bound  in  a  recognizance  besides  the  principal,  and 
accordingly  took  a  fee  as  for  three  recognizances  when  he  was  only 
entitled  to  charge  for  two,  no  action  would  lie  for  the  penalty.  "  Actus" 
says  Lord  Campbell,  "  non  facit  reum,  nisi  meyis  sit  rea.  Here  the 
defendant  very  reasonably  believing  that  there  were  two  sureties  bound, 
beside  the  principal,  has  not,  by  making  a  charge  in  pursuance  of  his 
belief,  incurred  the  forfeiture.  The  language  of  the  statute  is  '  for 
every  such  offence.'  If,  therefore,  the  table  allowed  him  to  cliarge  for 
three  recognizances  where  there  are  a  principal  and  two  sureties,  he 
has  not  committed  an  offence  under  the  act."  Bowman  v.  Blyth,  7  E. 
&  B.  26,  43. 


SECT.  I.J  KEGINA  C.    TOLSON.  239 

If  identical  language  may  thus  be  legitimately  construed  in  two 
opposite  senses,  and  is  sometimes  iield  to  imply  that  there  is  and  some- 
times that  there  is  not  an  offence  wlieu  the  guilty  mind  is  absent,  it  is 
obvious  that  assistance  must  be  sought  aliunde,  and  that  all  circum- 
stances must  be  taken  into  consideration  which  tend  to  show  that  the 
one  construction  or  the  other  is  reasonable,  and  among  such  circum- 
stances it  is  impossible,  to  discard  the  consequences.  Tliis  is  a  con- 
sideration entitled  to  little  weight  if  the  words  be  incapable  of  more 
than  one  construction  ;  but  1  have,  I  think,  abundantly  shown  that 
there  is  nothing  in  the  mere  form  of  words  used  in  the  enactment  now 
under  consideration  to  prevent  the  application  of  what  is  certainly  the 
normal  rule  of  construction  in  the  case  of  a  statute  constituting  an 
offence  entailing  severe  and  degrading  punishment.  If  the  words  are 
not  conclusive  in  themselves,  the  reasonableness  or  otherwise  of  the 
construction  contended  for  has  always  been  recognized  as  a  matter 
fairly  to  be  taken  into  account.  In  a  case  in  which  a  woman  was 
indicted  under  9  &  10  Wm.  III.,  c.  41,  s.  2,  for  having  in  her  posses- 
sion without  a  certificate  from  the  proper  authority  Government  stores 
marked  in  the  manner  described  in  the  Act,  it  was  argued  that  by  the 
Act  the  possession  of  the  certificate  was  made  the  sole  excuse,  and 
that  as  she  had  no  certificate  she  must  be  convicted.  Foster,  J.,  said, 
however,  that  though  the  words  of  the  statute  seemed  to  exclude  any 
other  excuse,  yet  the  circumstances  must  be  taken  into  consideration, 
otherwise  a  law  calculated  for  wise  purposes  might  be  made  a  hand- 
maid to  oppression  ;  and  directed  the  jury  that  if  they  thought  the 
defendant  came  into  possession  of  the  stores  without  any  fraud  or 
misbehavior  on  her  part  they  ought  to  acquit  her.  Foster's  Crown 
Law,  3d  ed.  App.  pp.  439,  440.  This  ruling  was  adopted  by  Lord 
Kenyon  in  Rex  v.  Banks,  1  Esp.  144,  who  considered  it  beyond  ques- 
tion that  the  defendant  might  excuse  himself  by  showing  that  he  came 
innocently  into  such  possession,  and  treated  the  unqualified  words  of 
the  statute  as  merely  shifting  the  burden  of  proof  and  making  it  neces- 
sary for  the  defendant  to  show  matter  of  excuse,  and  to  negative  the 
guilty  mind,  instead  of  its  being  necessary  for  the  crown  to  show  the 
existence  of  the  guilty  mind.  Prima  facie  the  statute  was  satisfied 
when  the  case  was  brought  within  its  terms,  and  it  then  lay  upon  the 
defendant  to  prove  that  the  violation  of  the  law  which  had  taken 
place  had  been  committed  accidentally  or  innocently  so  far*  as  he  was 
concerned.  Suppose  a  man  had  taken  up  by  mistake  one  of  two 
baskets  exactly  alike  and  of  similar  weight,  one  of  which  contained 
innocent  articles  belonging  to  himself  and  the  other  marked  "  Govern- 
ment Stores,"  and  was  caught  with  the  wrong  basket  in  his  hand.  He 
would  by  his  own  act  have  brought  himself  within  the  very  words  of 
the  statute.  Who  would  think  of  convicting  him?  And  yet  what 
defence  could  there  be  except  that  his  mind  was  innocent,  and  that  he 
had  not  intended  to  do  the  thing  forbidden  by  the  statute?  In  Fowler 
V.  Padget,  7  T.  R.  509,  the  question  was  whether  it  was  an  act  of 


240  REGINA   V.   TOLSON.  [CHAP.  IV. 

bankruptcy  for  a  man  to  depart  from  his  dwelling-hoase,  whereby  his 
creditors  were  defeated  and  delayed,  although  he  had  no  intention  of 
defeating  and  delaying  them.  The  statute  which  constituted  the  act 
of  bankruptcy  was  1  Jac.  I.  c.  15,  which  makes  it  an  act  of  bankruptcy 
(among  other  things)  for  a  man  to  depart  his  dwelling-house  "  to  the 
intent  or  whereby  his  creditors  may  be  defeated  and  delayed."  The 
court  of  King's  Bench,  consisting  of  Lord  Kenyon,  C.  J.,  and  Ashurst 
and  Grose,  JJ.,  held  that  there  was  no  act  of  bankruptcy.  "  Bank- 
ruptcy," said  Lord  Kenyon,  "  is  considered  as  a  crime,  and  the  bank- 
rupt in  the  old  laws  is  called  an  offender  ;  but,"  he  adds  in  the  passage 
already  cited,  "  it  is  a  principle  of  natural  justice  and  of  our  law  that 
actus  non  facit  reum  nisi  mens  sit  rea ;  "  and  the  court  went  so  far 
as  to  read  "  and"  in  the  statute  in  place  of  "  or,"  which  is  the  word 
used  in  the  Act,  in  order  to  avoid  the  consequences  which  appeared  to 
them  unjust  and  unreasonable.  In  Rex  v.  Banks,  1  Esp.  144,  above 
cited.  Lord  Kenyon  referred  to  Foster,  J.'s,  ruling  in  this  case  as  that 
of  "  one  of  the  best  Crown  lawyers  that  ever  sat  in  Westminster  Hall." 
These  decisions  of  Foster,  J.,  and  Lord  Kenyon  have  been  repeatedly 
acted  upon.  See  Reg.  v.  Willmett,  3  Cox  C.  C.  281  ;  Reg.  v.  Cohen, 
8  Cox  C.  C.  41  ;  Reg.  v.  Sleep  (in  the  Court  for  C.  C.  R.),  L.  &  C. 
44  ;  30  L.  J.  N.  C.  170  ;  Reg.  v.  O'Brien,  15  L.  T.  (N.  S.)  419. 

Now  in  the  present  instance  one  consequence  of  holding  that  the 
offence  is  complete  if  the  husband  or  wife  is  de  facto  alive  at  the  time 
of  the  second  marriage,  although  the  defendant  had  at  the  time  of  the 
second  marriage  every  reason  to  believe  the  contrary,  would  be  that 
though  the  evidence  of  death  should  be  sufficient  to  induce  the  Court 
of  Probate  to  grant  probate  of  the  will  or  administration  of  the  goods 
of  the  man  supposed  to  be  dead,  or  to  prevail  with  the  jury  upon  an 
action  by  the  heir  to  recover  possession  of  his  real  property,  the  wife 
of  the  person  supposed  to  be  dead  who  had  married  six  years  and 
eleven  months  after  the  last  time  she  had  known  him  to  be  alive  would 
be  guilty  of  felony  in  case  he  should  turn  up  twenty  years  afterwards. 
It  would  be  scarcely  less  unreasonable  to  enact  that  those  who  had  in 
the  meantime  distributed  his  personal  estate  should  be  guilty  of  lar- 
ceny. It  seems  to  me  to  be  a  case  to  which  it  would  not  be  improper 
to  apply  the  language  of  Lord  Kenyon  when  dealing  with  a  statute 
which  literally  interpreted  led  to  what  he  considered  an  equally  pre- 
posterous i-esult :  "  I  would  adopt  any  construction  of  the  statute  that 
the  words  will  bear  in  order  to  avoid  such  monstrous  consequences." 
Fowler  v.  Padget,  7  T.  R.  509,  514. 

Again,  the  nature  and  extent  of  the  penalty  attached  to  the  offence 
may  reasonably  be  considered.  There  is  nothing  that  need  shock  any 
mind  in  the  payment  of  a  small  pecuniary  penalty  by  a  person  who 
has  unwittingly  done  something  detrimental  to  the  public  interest.  To 
subject  him,  when  what  he  has  done  has  been  nothing  but  what  any 
well-disposed  man  would  have  been  very  likely  to  do  under  the  cir- 
cumstances,  to  the  forfeiture  of    all  his  goods  and  chattels,   which 


SECT.  I.]  liEGINA   V.   TULSON.  241 

would  have  been  one  consequence  of  a  conviction  at  the  date  of  the 
Act  of  24  &  25  Vict.,  to  the  loss  of  civil  rights,  to  imprisomneut  with 
hard  labor,  or  even  to  penal  servitude,  is  a  very  differeut  matter  ;  and 
such  a  fate  seems  properly  reserved  for  those  who  have  transgressed 
morally,  as  well  as  unintentionally  doue  something  prohibited  'oy  law. 
I  am  well  aware  that  the  mischiefs  which  may  result  from  bigamous 
marriages,  however  innocently  contracted,  are  great ;  but  I  cannot 
think  that  the  appropriate  way  of  preventing  them  is  to  expose  to  the 
danger  of  a  cruel  injustice  persons  whose  only  error  may  be  that  of 
acting  upon  the  same  evidence  as  has  appeared  perfectly  satisfactory 
to  a  Court  of  Probate,  a  tribunal  emphatically  dillicult  to  satisfy  in 
such  matters,  and  certain  only  to  act  upon  what  appears  to  be  the  most 
cogent  evidence  of  death.  It  is,  as  it  seems  to  me,  undesirable  in  the 
highest  degree  without  necessity  to  multiply  instances  in  which  people 
shall  be  liable  to  conviction  upon  very  grave  charges,  when  the  cir- 
cumstances are  such  that  no  judge  iu  the  kingdom  would  think  of 
pronouncing  more  than  a  nominal  sentence. 

It  is  said,  however,  in  respect  of  the  offence  now  under  discussion, 
that  the  proviso  in  24  &  25  Vict.  c.  100,  s.  57,  that  "  nothing  in  the  sec- 
tion shall  extend  to  any  person  marrying  a  second  time  whose  husband 
or  wife  shall  have  been  continually  absent  from  such  person  for  seven 
years  last  past,  and  shall  not  have  been  known  by  such  person  to  be 
living  within  that  time,"  points  out  the  sole  excuse  of  which  the  Act 
allows.  I  cannot  see  what  necessity  there  is  for  drawing  any  such 
inference.  It  seems  to  me  that  it  merely  specifies  one  particular  case, 
and  mdicates  what  in  that  case  shall  l)e  sufficient  to  exempt  the  party, 
without  any  further  inquiry,  from  criminal  liability  ;  and  I  think  it  is  an 
argument  of  considerable  weight  in  this  connection,  that  under  9  ife  10 
Wm.  III.  c.  41,  s.  2,  where  a  similar  contention  was  founded  upon  the 
specification  of  one  particular  circumstance  under  which  the  possession 
of  Government  stores  should  be  justified,  successive  judges  and  courts 
have  refused  to  accede  to  the  reasoning,  and  have  treated  it,  to  use 
the  words  of  Lord  Kenyon,  as  a  matter  that  "  could  not  bear  a  ques- 
tion," that  the  defendant  might  show  in  other  ways  that  his  posses- 
sion was  without  fraud  or  misbehavior  on  his  part.  Rex  v.  Banks, 
1  Esp.  144,  147. 

Upon  the  point  in  question  there  are  conflicting  decisions.^  There 
is  nothing,  therefore,  in  the  state  of  the  authorities  directly  bearing 
upon  the  question  to  prevent  one  from  deciding  it  upon  the  grounds  of 
principle.  It  is  suggested,  however,  that  the  important  decision  of  the 
court  of  fifteen  judges  in  Reg.  v.  Prince,  L.  R.  2  C.  C.  154,  is  an 
authority  in  favor  of  a  conviction  in  this  case.  I  do  not  think  so.  In 
Reg.  V.  Prince  the  prisoner  was  indicted  under  24  &  25  Vict.  e.  100, 

1  The  learned  judge  here  examined  the  following  conflicting  decisions:  Reg.  v 
Turner,  9  Cox  C.  C.  145;  Reg.  v.  Horton,  11  Co.:  C.  C.  670;  Reg.  v.  Gibbons,  12 
Cox  C.  C.  237;  Reg.  v.  Bennett,  14  Cox  C  C.  45;  Reg.  v.  Moore,  13  Cox  C.  C. 
544.  —  Kd. 


242  EEGINA   V.    TOLSON.  -  [CHAP.  IV. 

s.  55,  for  "  unlawfully  taking  an  unmarried  girl,  then  being  under  the 
age  of  sixteen  years,  out  of  the  possession  and  against  the  will  of  her 
father."  The  jury  found  tliat  the  prisoner  bona  fide  believed  upon 
reasonable  grounds  that  she  was  eighteen.  The  court  (dissentiente 
Brett,  J.,)  upheld  the  conviction.  Two  judgments  were  delivered  by 
a  majority  of  the  court,  in  eacli  of  which  several  judges  concurred, 
whilst  three  of  them,  Denman,  J.,  Polloclv,  B.,  and  Quaui,  J.,  concurred 
in  both.  The  first  of  the  two,  being  the  judgment  of  nine  judges, 
upheld  the  conviction  upon  the  ground  that,  looking  to  tlie  subject- 
matter  of  the  enactment,  to  the  group  of  sections  amongst  which  it  is 
found,  and  to  the  history  of  legislation  on  the  subject,  the  intention 
of  the  legislature  was  that  if  a  man  took  an  unmarried  girl  under  six- 
teen out  of  the  possession  of  her  father  against  his  will,  he  must  take 
his  chance  of  whether  any  belief  he  might  have  about  lier  age  was 
right  or  wrong,  and  if  he  made  a  mistake  upon  this  point  so  much 
the  worse  for  him,  —  he  must  bear  the  consequences.  The  second 
of  the  two  judgments,  being  that  of  seven  judges,  gives  a  number  of 
other  reasons  for  arriving  at  the  same  conclusion,  some  of  them 
founded  upon  the  policy  of  the  legislature  as  illustrated  by  other  asso- 
ciated sections  of  the  same  Act.  This  judgment  contains  an  emphatic 
recognition  of  the  doctrine  of  the  "  guilty  mind,"  as  an  element,  in  gen- 
eral, of  a  criminal  act,  and  supports  the  conviction  upon  the  ground 
that  the  defendant,  who  believed  the  gu'l  to  be  eighteen  and  not  six- 
teen, even  then,  in  taking  her  out  of  the  possession  of  the  father  against 
his  will  was  doing  an  act  wrong  in  itself.  "This  opinion,"  says  the 
judgment,  "  gives  full  scope  to  the  doctrine  of  the  mens  rea."  ^ 

The  case  of  Reg.  v.  Prince,  therefore,  is  a  direct  and  cogent  author- 
ity for  saying  that  the  intention  of  the  legislature  cannot  be  decided 
upon  simple  prohibitory  words,  without  reference  to  other  considera- 
tions. The  considerations  relied  upon  in  that  case  are  wanting  in  the 
present  case,  whilst,  as  it  seems  to  me,  those  which  point  to  the  appli- 
cation of  the  principle  underlying  a  vast  area  of  criminal  enactment, 
that  there  can  be  no  crime  without  a  tainted  mind,  preponderate  greatly 
over  any  that  point  to  its  exclusion. 

1  "To  my  mind,  it  is  contrary  to  the  whole  established  law  of  England  (unless  the 
legislation  on  the  subject  has  clearly  enacted  it),  to  say  that  a  person  can  be  guilty  of  a 
crime  in  England  without  a  wrongful  intent,  —  without  an  attempt  to  do  that  which 
the  law  has  forbidden.  I  am  aware  that  in  a  particular  case,  and  under  a  particular 
criminal  statute,  fifteen  judges  to  one  held  that  a  person  whom  the  jury  found  to  have 
no  intent  to  do  what  was  forbidden,  and  whom  the  jury  found  to  have  been  deceived, 
and  to  have  understood  the  facts  to  be  such  that  he  might  with  impunity  have  done  a 
certain  thing,  was  by  the  terms  of  that  Act  of  Parliament  guilty  of  a  crime,  and  could 
be  imprisoned.  I  say  still,  as  I  said  then,  that  I  cannot  subscribe  to  the  propriety  of 
that  decision.  I  bow  to  it,  but  I  cannot  subscribe  to  it;  but  the  majority  of  the  judges 
forming  the  court  so  held  because  they  said  that  the  enactment  was  absolutely  clear." 
Brett,  M.  R.,  in  Attorney  General  v.  Bradlaugh,  14  Q.  B.  D.  667,  689. 

"  Achis  non  facit  ream,  nisi  mens  sit  rea  is  the  foundation  of  all  criminal  justice." 
CocKBURN,  C  J.,  in  Reg.  v.  Sleep,  8  Cox  G.  C.  472,  477.  —  Ed. 


SECT.  I.j 


REGINA  V.    TOLSON.  243 


In  my  opinion,  therefore,  this  conviction  ought  to  be  quashed.^ 
Stepiikn,  J.  I  am  of  opinion  that  the  conviction  should  be  quashed. 
My  view  of  the  subject  is  based  upon  a  particular  api)lication  of  the 
doctrine  usually,  though  I  think  not  hai)pily,  described  by  the  phrase 
'^  non  est  reus,  uisi  mens  sit  rea."  Though  this  phrase  is  in  common 
use,  I  think  it  most  unfortunate,  and  not  only  likely  to  mislead,  but 
actually  misleading,  on  the  following  grounds :  It  naturally  suggests 
that,  apart  from  all  particular  definitious  of  crimes,  such  a  thing  exists 
as  a  wens  rea,  or  "  guilty  mind,"  which  is  always  expressly  or  by 
implication  involved  in  every  definition.  This  is  obviously  not  the  case, 
for  the  mental  elements  of  different  crimes  differ  widely.  3Ieiis  rea 
means,  in  the  case  of  murder,  malice  aforethought ;  in  the  case  of  theft, 
an  intention  to  steal ;  in  the  case  of  rape,  an  intention  to  have  forcible 
connection  with  a  woman  without  her  consent-,  and  in  the  case  of 
receiving  stolen  goods,  knowledge  that  the  goods  were  stolen.  In  some 
cases  it  denotes  mere  inattention.  For  instance,  in  the  case  of  man- 
slaughter by  negligence,  it  may  mean  forgetting  to  notice  a  signal.  It 
appears  confusing  to  call  so  many  dissimilar  states  of  mind  by  one 
name.  It  seems  contradictory  indeed  to  describe  a  mere  absence  of 
mind  as  a  ''mens  rea,"  or  "guilty  mind."  The  expression,  again,  is 
likely  to  and  often  does  mislead.  To  an  unlegal  mind  it  suggests  that 
by  the  law  of  England  no  act  is  a  crime  which  is  done  from  laudable 
motives  ;  in  other  words,  that  immorality  is  essential  to  crime.  It  will, 
I  think,  be  found  that  much  of  the  discussion  of  the  law  of  lil)el  in 
Shipley's  Case,  4  Doug.  73  ;  21  St.  Tr.  S47,  proceeds  upon  a  more  or 
less  distinct  belief  to  this  effect.  It  is  a  topic  frequently  insisted  upon 
in  reference  to  political  offences,  and  it  was  urged  in  a  recent  notorious 
case  of  abduction,  in  which  it  was  contended  that  motives  said  to  be 
laudable  were  an  excuse  for  the  abduction  of  a  child  from  its  parents. 
Like  most  legal  Latin  maxims,  the  maxim  on  mens  rea  appears  to  me 
to  be  too  short  and  antithetical  to  be  of  much  practical  value.  It  is, 
ind'^ed,  more  like  the  title  of  a  treatise  than  a  practical  rule.  I  have 
tried  to  ascertain  its  origin,  but  have  not  succeeded  in  doing  so.  It  is 
not- one  of  the  '■'■reguke  Juris"  in  the  digests.  The  earliest  case  of  its 
nse  which  I  have  found  is  in  the  "  Leges  Henrici  Primi,"  v.  28,  in 
which  it  is  said:  "/Si  quis  per  coactionem  abjurare  cogatur  quod  %->er 
viultos  annos  quiete  tenuerit  non  in  jurante  set  cogente  perjurium  erit. 
Reum  non  facit  nisi  mens  rea.'"  In  Broom's  Maxims  the  earliest 
authority  cited  for  its  use  is  3d  Institute,  ch.  i.  fol.  10.  In  this  place 
it  is  contained  in  a  marginal  note,  which  says  that  when  it  was  found 
that  some  of  Sir  John  Oldcastle's  adherents  took  part  in  an  insurrection 
"pro  timore  mortis  et  quod  recesserunt  quam  cito  jwtuerunt,"  the  judges 
held  that  this  was  to  be  adjudged  no  treason,  because  it  was  for  fear 
of  death.    Coke  adds:  ^'Et  actus  non  facit  reum  nisi  mens  sit  rea." 

1  Conciirrlug  opinions  of  Cave  and  Hawkins,  JJ.,  and  Lord  Coleridge,  C.  J.,  are 
omitted.  Charles,  Day,  A.  L.  Smith,  and  Grantham,  JJ.,  concurred.  Part  of  the 
opinion  of  Stephen,  J.,  is  omitted.  —  Ed. 


244  REGINA   V.    TOLSON.  [CHAP.   IV. 

This  is  only  Coke's  own  remark,  and  not  part  of  the  judgment.  Now 
Coke's  scraps  of  Latin  in  this  and  the  following  chapters  are  some- 
times contradictory.  Notwithstanding  the  passage  just  quoted,  he 
says  in  the  margin  of  his  remarks  on  opinions  delivered  in  Parliament 
by  Thyrning  and  others  in  the  21  R.  2  :  '•'•Melius  est  omnia  mala  pati 
quam  malo  consentire"  (22-23),  which  would  show  that  Sir  J.  Oldcas- 
tle's  associates  had  a  viens  rea,  or  guilty  mind,  though  they  were 
threatened  with  death,  and  thus  contradicts  the  passage  first  quoted. 

It  is  ..Ixjgular  that  in  each  of  these  instances  the  maxim  should  be 
used  in  connection  with  the  law  relating  to  coercion. 

The  principle  involved  appears  to  me,  when  fully  considered,  to 
amount  to  no  more  than  this  :  The  full  definition  of  every  crime  con- 
tains, expressl}^  or  by  implication,  a  proposition  as  to  a  state  of  mind. 
Therefore,  if  the  mental  element  of  any  conduct  alleged  to  be  a  crime 
is  proved  to  have  been  absent  in  any  given  case,  the  crime  so  defined 
is  not  committed  ;  or,  again,  if  a  crime  is  fully  defined,  nothing  amounts 
to  that  crime  which  does  not  satisfy  that  definition.  Crimes  are  in  the 
present  day  much  more  accurately  defined  by  statute  or  otherwise  than 
they  formerly  were.  The  mental  element  of  most  crimes  is  marked 
by  one  of  the  words  "maliciously,"  "fraudulently,"  "  negligently,"  or 
"  knowingly,"  but  it  is  the  general  —  I  might,  I  think,  say,  the  inva- 
riable —  practice  of  the  legislature  to  leave  unexpressed  some  of  the 
mental  elements  of  crime.  In  all  cases  whatever,  competent  age, 
sanity,  and  some  degree  of  freedom  from  some  kinds  of  coercion  are 
assumed  to  be  essential  to  criminality,  but  I  do  not  believe  they  are 
ever  introduced  into  any  statute  by  which  any  particular  crime  is 
defined. 

The  meanings  of  the  words  "malice,"  "negligence,"  and  "fraud," 
in  relation  to  particular  crimes  has  been  ascertained  by  numerous  cases. 
Malice  means  one  thing  in  relation  to  murder,  another  in  relation  to 
the  Malicious  Mischief  Act,  and  a  third  in  relation  to  libel,  and  so  of 
fraud  and  negligence. 

With  regard  to  knowledge  of  fact,  the  law,  perhaps,  is  not  quite  so 
clear,  but  it  may,  I  think,  be  maintained  that  in  every  case  knowledge 
of  fact  is  to  some  extent  an  element  of  criminality  as  much  as  compe- 
tent age  and  sanity.  To  take  an  extreme  illustration,  can  any  one 
doubt  that  a  man  who,  though  he  might  be  perfectly  sane,  committed 
what  would  otherwise  be  a  crime  in  a  state  of  somnambulism,  would 
be  entitled  to  be  acquitted?  And  why  is  this?  Simply  because  he 
would  not  know  what  he  was  doing.  A  multitude  of  illustrations  of 
the  same  sort  might  be  given.  I  will  mention  one  or  two  glaring  ones. 
Levet's  Case,  1  Hale,  474,  decides  that  a  man  who,  making  a  thrust 
with  a  sword  at  a  place  where,  upon  reasonable  grounds,  he  supposed 
a  burglar  to  be,  killed  a  person  who  was  not  a  burglar,  was  held  not 
to  be  a  felon,  though  he  might  be  (it  was  not  decided  that  he  was) 
guilty  of  killing  per  infortunium,  or  possibly,  se  defendendo,  which 
then  involved  certain  forfeitures.     In  other  words,  he  was  in  the  same 


SECT.  I.]  REGINA   V.   TOLSON.  245 

situation  as  far  as  regarded  the  homicide  as  if  he  had  killed  a  burglar. 
In  the  decision  of  the  judges  in  McNaghten's  Case,  10  CI.  &  F.  200, 
it  is  stated  that  if,  under  an  insane  delusion,  one  man  killed  another, 
and  if  the  delusion  was  such  that  it  would,  if  true,  justify  or  excuse 
the  killing,  the  homicide  would  be  justified  or  excused.  This  could 
hardly  be  if  the  same  were  not  law  as  to  a  sane  mistake.  A  bona  fide 
claim  of  right  excuses  larceny,  and  many  of  the  offences  against  the 
Malicious  Mischief  Act.  Apart,  indeed,  from  the  present  case,  I  think 
it  may  be  laid  down  as  a  general  rule  that  an  alleged  offender  is  deemed 
to  have  acted  under  that  state  of  facts  which  he  in  good  faith  and  on 
reasonable  grounds  believed  to  exist  when  he  did  the  act  alleged  to  be 
an  offence. 

I  am  unable  to  suggest  any  real  exception  to  this  rule,  nor  has  one 
ever  been  suggested  to  me.  A  very  learned  person  suggested  to  me 
the  following  case  :  A  constable,  reasonably  believing  a  man  to  have 
committed  murder,  is  justified  in  killing  him  to  prevent  his  escape,  but 
if  he  had  not  been  a  constable  he  would  not  have  been  so  justified,  but 
would  have  been  guilty  of  manslaughter.  This  is  quite  true,  but  the 
mistake  in  the  second  case  would  be  not  only  a  mistake  of  fact,  but  a 
mistake  of  law  on  the  part  of  the  homicide  in  supposing  that  he,  a 
private  person,  was  justified  in  using  as  much  violence  as  a  public  offi- 
cer, whose  duty  is  to  arrest,  if  possible,  a  person  reasonably  suspected 
of  murder.  The  supposed  homicide  would  be  in  the  same  position  as 
if  his  mistake  of  fact  had  been  true  ;  that  is,  he  would  be  guilty,  not 
of  murder,  but  of  manslaughter,  I  think,  therefore,  that  the  cases 
reserved  fall  under  the  general  rule  as  to  mistakes  of  fact,  and  that 
the  conviction  ought  to  be  quashed. 

I  will  now  proceed  to  deal  with  the  arguments  which  are  supposed 
to  lead  to  the  opposite  result. 

It  is  said,  first,  that  the  words  of  24  &  25  Vict.  c.  100,  s.  57,  are 
absolute,  and  that  the  exceptions  which  that  section  contains  are  the 
only  ones  which  are  intended  to  be  admitted  ;  and  this,  it  is  said,  is 
confirmed  by  the  express  proviso  in  the  section,  —  an  indication  which 
is  thought  to  negative  any  tacit  exception.  It  is  also  supposed  that 
the  case  of  Reg.  v.  Prince,  L.  R.  2  C.  C.  154,  decided  on  s.  55,  con- 
firms this  view.  I  will  begin  by  saying  how  far  I  agree  with  these 
views.  First,  I  agree  that  the  case  turns  exclusively  upon  the  con- 
struction of  s.  57  of  24  &  25  Vict.  c.  100.  Much  was  said  to  us  in 
argument  on  the  old  statute,  1  Jac.  I.  c.  11.  I  cannot  see  what  this 
has  to  do  with  the  matter.  Of  course,  it  would  be  competent  to  the 
legislature  to  define  a  crime  in  such  a  way  as  to  make  the  existence  of 
any  state  of  mind  immaterial.  The  question  is  solely  whether  it  has 
actually  done  so  in  this  case. 

In  the  first  place  I  will  observe  upon  the  absolute  character  of  the 
section.  It  appears  to  me  to  resemble  most  of  the  enactments  con- 
tained in  the  Consolidation  Acts  of  1861,  in  passing  over  the  general 
mental  elements  of  crime  which  are  presupposed  in  every  case.    Age, 


246  KEGINA   V.    TOLSON.  [CHAP.   IV. 

sanity,  and  more  or  less  freedom  from  compulsion,  are  always  pre- 
sumed, and  I  think  it  would  be  impossible  to  quote  any  statute  which 
in  any  case  specifies  these  elements  of  criminality  in  the  definition  of 
any  crime.  It  will  be  found  that  either  by  using  the  words  "  wilfully 
and  maliciously,"  or  by  specifying  some  special  intent  as  an  element 
of  particular  crimes,  knowledge  of  fact  is  implicitly  made  part  of  the 
statutory  definition  of  most  modern  definitions  of  crimes  ;  but  there  are 
some  cases  in  which  this  cannot  be  said.  Such  are  :  s.  55,  on  which 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154,  was  decided  ;  s.  56,  wliich  punishes 
the  stealing  of  "any  child  under  the  age  of  fourteen  years  ;"  s.  49,  as 
to  procuring  the  defilement  of  any  "  woman  or  girl  under  tlie  age  of 
twenty-one."  —  in  each  of  whicli  the  same  question  might  arise  as  in 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154  ;  to  these  I  may  add  some  of  the  pro- 
visions of  the  Criminal  Law  Amendment  Act  of  1885.  Reasonable 
belief  that  a  girl  is  sixteen  or  upwards  is  a  defence  to  the  charge  of 
an  offence  under  ss.  5,  6,  and  7,  but  this  is  not  provided  for  as  to  an 
offence  against  s.  4,  which  is  meant  to  protect  girls  under  thirteen. 

It  seems  to  me  that  as  to  the  construction  of  all  these  sections  the 
case  of  Reg.  v.  Prince  is  a  direct  authority.  It  was  the  case  of  a  niiin 
who  abducted  a  girl  under  sixteen,  believing  on  good  grounds  that 
she  was  above  that  age.  Lord  Esher,  then  Brett,  J.,  was  against 
the  conviction.  His  judgment  establishes  at  much  length,  and,  as  it 
appears  to  me,  unanswerably,  the  principle  above  explained,  which  he 
states  as  follows  :  "That  a  mistake  of  facts  on  reasonable  grounds,  to 
the  extent  that,  if  the  facts  were  as  believed,  the  acts  of  the  prisoner 
would  make  him  guilty  of  no  offence  at  all,  is  an  excuse,  and  that 
such  an  excuse  is  implied  in  every  criminal  cliarge  and  every  crmiinal 
enactment  in  England." 

Lord  Blackburn,  with  whom  nine  other  judges  agreed,  and  Lord 
Bramwell,  with  whom  seven  others  agreed,  do  not  appear  to  me  to 
have  dissented  from  this  principle,  speaking  generally  ;  but  they  held 
that  it  did  not  apply  fully  to  each  part  of  every  section  to  which  I  have 
referred.  Some  of  the  prohibited  acts  they  thought  the  legislature 
intended  to  be  done  at  the  peril  of  the  person  who  did  them,  but  not 
all. 

The  judgment  delivered  by  Lord  Blackburn  proceeds  upon  the  prin- 
ciple that  the  intention  of  the  legislature  in  s.  55  was  "to  punish  the 
abduction  unless  the  girl  was  of  such  an  age  as  to  make  her  consent 
an  excuse." 

Lord  Bram weirs  judgment  proceeds  upon  this  principle  :  "The  legis- 
lature has  enacted  that  if  any  one  does  this  wrong  act  he  does  it  at 
the  risk  of  her  turning  out  to  be  under  sixteen.  This  opimon  gives 
full  scope  to  the  doctrine  of  the  mens  rea.  If  the  taker  believed  he 
had  her  father's  consent,  though  wrongly,  he  would  have  no  mens  rea; 
so  if  he  did  not  know  she  was  in  any  one's  possession  nor  in  the  care 
or  charge  of  any  one.  In  those  cases  he  would  not  know  he  was  doing 
the  -act  forbidden  by  the  statute." 


SECT.  I.]  REGINA   V.   TOLSON.  247 

All  the  judges,  therefore,  in  Reg.  v.  Trince  agreed  on  the  general 
principle,  though  they  all,  except  Lord  Pusher,  considered  that  the 
object  of  the  legislature  being  to  prevent  a  scandalous  and  wicked 
invasion  of  parental  riglits  (whether  it  was  to  be  regarded  as  illegal 
apart  from  the  statute  or  not)  it  was  to  be  supposed  that  they  intended 
that  the  wrong-doer  should  act  at  his  peril. 

As  another  illustration  of  the  same  principle,  I  may  refer  to  Keg.  v. 
Bishop,  5  Q.  B.  D.  25'J.  The  defendant  in  that  case  was  tried  before 
me  for  receiving  more  than  two  lunatics  into  a  house  not  duly  licensed, 
upon  an  indictment  on  8  and  9  Vict.  c.  100,  s.  44.  It  was  proved  that 
the  defendant  did  receive  more  than  two  persons,  whom  the  jury  found 
to  be  lunatics,  into  her  house,  believing  honestly,  and  on  reasonable 
grounds,  that  they  were  not  lunatics.  I  held  that  this  was  immaterial, 
having  regard  to  the  scope  of  the  Act,  and  the  object  for  which  it  was 
apparently  passed,  and  this  court  upheld  that  ruling.^ 

The  application  of  this  to  the  present  case  appears  to  me  to  be  as 
follows  :  The  general  principle  is  clearly  in  favor  of  the  prisoner,  but 
how  does  the  intention  of  the  legislature  appear  to  have  been  against 
her?  It  could  not  be  the  object  of  parliament  to  treat  the  marriage  of 
widows  as  an  act  to  be  if  possible  prevented  as  presumably  immoral. 
The  conduct  of  the  woman  convicted  was  not  in  the  smallest  degree 
immoral ;  it  was  perfectly  natural  and  legitimate.  Assuming  the  facts 
to  be  as  she  supposed,  the  infliction  of  more  than  a  nominal  punishment 
on  her  would  have  been  a  scandal.  Why,  then,  should  the  legislature 
be  held  to  have  wished  to  subject  her  to  punishment  at  all? 

If  such  a  punishment  is  legal,  the  following  among  many  other 
cases  might  occur  :  A  number  of  men  in  a  mine  are  killed,  and  their 
bodies  are  disfigured  and  mutilated,  by  an  explosion.  One  of  the  sur- 
vivors secretly  absconds,  and  it  is  supposed  that  one  of  the  disfigured 
bodies  is  his.  His  wife  sees  his  supposed  remains  buried  ;  she  marries 
again.  I  cannot  believe  that  it  can  have  been  the  intention  of  the  legis- 
lature to  make  such  a  woman  a  criminal ;  the  contracting  of  an  invalid 
marriage  is  quite  misfortune  enough.  It  appears  to  me  that  every 
argument  which  showed,  in  the  opinion  of  the  judges  in  Reg.  v.  Prince, 
L.  R.  2  C.  C.  154,  that  the  legislature  meant  seducers  and  abductors  to 
act  at  their  peril,  shows  that  the  legislature  did  not  mean  to  hamper 
what  is  not  only  intended,  but  naturally  and  reasonably  supposed  by 
the 'parties  to  be  a  valid  and  honorable  marriage,  with  a  liability  to 
seven  years'  penal  servitude. 

It  is  argued  that  the  proviso  that  a  re-marriage  after  seven  years' 
separation  shall  not  be  punishable  operates  as  a  tacit  exclusion  of  all 
other  exceptions  to  the  penal  part  of  the  section.  It  appears  to  me 
that  it  only  supplies  a  rule  of  evidence  which  is  useful  in  many  cases 

1  "I  am  not  aware  of  any  other  way  in  which  it  is  possible  to  determine  whether 
the  word  '  knowingly '  is  or  is  not  to  he  implied  in  the  definition  of  a  crime  in  which  it 
is. not  expressed."     2  Stephen  Hist.  Cr.  b  117. 


248  EKGINA    V.    TOLSON.  [CHAP.    IV. 

in  the  absence  of  explicit  proof  of  death.  But  it  seems  to  nris  to  show, 
not  that  belief  in  the  death  of  one  married  person  excuses  the  iL.arriage 
of  the  other  only  after  seven  years'  separation,  but  that  mere  separation 
for  that  period  has  the  effect  which  reasonable  belief  of  death  caused 
by  other  evidence  would  have  at  any  time.  It  would  to  my  mind  be 
monstrous  to  say  that  seven  years'  separation  should  have  a  greater 
effect  in  excusing  a  bigamous  marriage  than  positive  evidence  of  death, 
sufficient  for  the  purpose  of  recovering  a  policy  of  assurance  or  obtain- 
ing probate  of  a  will,  would  have,  as  in  the  case  I  have  put,  or  in  others 
which  might  be  even  stronger. 

Manisty,  J.     I  am  of  opinion  that  the  conviction  should  be  affirmed. 

The  question  is  whether  if  a  married  woman  mari'ies  another  man 
during  the  life  of  her  former  husband,  and  within  seven  years  of  his 
leaving  her,  she  is  guilty  of  felon}',  the  jur\'  having  found  as  a  fact  that 
she  had  reason  to  believe,  and  did  honestly  believe,  that  her  former 
husband  was  dead. 

The  57th  section  of  the  24  &  25  Vict.  c.  100  is  as  express  and  as 
free  fi-om  ambiguity  as  words  can  make  it.  The  statute  says  :  "  Who- 
soever being  married  shall  marry  any  other  person  during  the  life  of 
the  former  husband  or  wife  .  .  .  shall  be  guilty  of  felony,  and  being 
convicted  shall  be  liable,  at  the  discretion  of  the  court,  to  be  kept  in 
penal  servitude  for  any  term  not  exceeding  seven  years,  and  not  less 
than  three  3'ears,  or  to  be  imprisoned  for  an}'  term  not  exceeding  two 
years,  with  or  without  hard  labor."  The  statute  does  not  even  say  if 
the  accused  shall  feloniousl}'  or  unlawfully  or  knowingly  commit  the 
act  he  or  she  shall  be  guilty  of  felon}',  but  the  enactment  is  couched  in 
the  clearest  language  that  could  be  used  to  prohibit  the  act,  and  to 
make  it  a  felony  if  the  act  is  committed. 

If  any  doubt  could  be  entertained  on  the  point,  it  seems  to  me  the 
proviso  which  follows  the  enactment  ouglit  to  remove  it.  The  proviso 
is,  that  "Nothing  in  the  57th  section  of  the  Act  shall  extend  to  any 
person  marrying  a  second  time  whose  husband  or  wife  shall  have  been 
continually  absent  from  such  person  for  the  space  of  seven  years  then 
last  past,  and  shall  not  have  been  known  by  such  person  to  be  living 
within  that  time." 

Such  being  the  plain  language  of  the  Act,  it  is,  in  my  opinion,  the 
imperative  duty  of  the  court  to  give  effect  to  it,  and  to  leave  it  to  the 
legislature  to  alter  the  law  if  it  thinks  it  ought  to  be  altered. 

Probably  if  the  law  was  altered  some  provision  would  be  made  in 
favor  of  children  of  the  second  marriage.  If  the  second  marriage  is  to 
be  deemed  to  be  legal  for  one  purpose,  surely  it  ought  to  be  deemed 
legal  as  to  the  children  who  are  the  offspring  of  it.  If  it  be  within  the 
province  of  the  court  to  consider  the  reasons  which  induced  the  legis- 
lature to  pass  the  Act  as  it  is,  it  seems  to  me  one  principal  reason  is 
on  the  surface,  namely,  the  consequence  of  a  married  person  marrying 
again  in  the  lifetime  of  his  or  her  former  wife  or  husband,  in  which 
case  it  might,  and  in  many  cases  would  be,  that  several  children  of  the 


SECT.  I.]  KEGINA   V.   TOLSON.  249 

second  rnarriage  would  be  born,  and  all  would  be  bastards.  The  pro- 
viso is  evidently  founded  upon  the  assumption  that  after  the  lapse  of 
seven  years,  and  the  former  husband  or  wife  not  being  heard  of,  it  ma}' 
reasonably  be  inferred  that  lie  or  she  is  dead,  and  thus  the  mischief  of 
a  second  marriage  in  tlie  lifetime  of  the  former  husband  or  wife  is  to  a 
great  extent,  if  not  altogether,  avoided. 

It  is  to  be  borne  in  mind  that  bigamy  never  was  a  crime  at  common 
law.  It  has  been  the  subject  of  several  Acts  of  Parliament,  and  is  now 
governed  by  24  &  25  Vict.  c.  100,  s.  57. 

No  doubt  in  construing  a  statute  the  intention  of  the  legislature  is 
what  the  court  has  to  ascertain  ;  but  the  intention  must  be  collected 
from  the  language  used  ;  and  where  that  language  is  plain  and  explicit, 
and  free  from  all  ambiguity,  as  it  is  in  the  present  case,  I  have  always 
understood  that  it  is  the  imperative  duty  of  judges  to  give  effect  to  it. 

The  cases  of  insanity,  etc.,  on  which  reliance  is  placed  stand  on  a 
totally  different  principle,  namely,  that  of  an  absence  of  mens.  Igno- 
rance of  the  law  is  no  excuse  for  the  violation  of  it ;  and  if  a  person 
choose  to  run  the  risk  of  committing  a  felon}-,  he  or  she  must  take  the 
consequences  if  it  turn  out  that  a  felony  has  been  committed. 

Great  stress  is  laid  by  those  who  hold  that  the  conviction  should  be 
quashed  upon  the  circumstance  that  the  crime  of  bigamy  is  by  the 
statute  declared  to  be  a  felon}-,  and  punishable  with  penal  servitude 
or  imprisonment,  with  or  without  hard  labor,  for  any  term  not  exceed- 
ing two  years.  If  the  crime  had  been  declared  to  be  a  misdemeanor 
punishable  with  fine  or  imprisonment,  sureh-  the  construction  of  the 
statute  would  have  been,  or  ought  to  have  been,  the  same.  It  may 
well  be  that  the  legislature  declared  it  to  be  a  felony  to  deter  married 
persons  from  running  the  risk  of  committing  the  crime  of  bigamy,  and 
in  order  that  a  severe  punishment  might  be  inflicted  in  cases  where 
there  were  no  mitigating  circumstances.  No  doubt  circumstances  may 
and  do  affect  the  sentence,  even  to  the  extent  of  the  punishment  being 
nominal,  as  it  was  in  the  present  case  ;  but  that  is  a  very  different  thing 
from  disregarding  and  contravening  the  plain  words  of  the  Act  of 
Parliament. 

The  case  is  put  by  some  of  ni}-  learned  brothers  of  a  married  man 
leaving  his  wife  and  going  into  a  foreign  country  intending  to  settle 
there,  and,  it  may  be,  afterwards  to  send  for  his  wife  and  children,  and 
the  ship  in  which  he  goes  is  lost  in  a  storm,  with,  as  is  supposed,  all  on 
board  ;  and  after  the  lapse  of  say  a  year,  and  no  tidings  received  of  an}- 
one  having  been  saved,  the  underwriters  pay  the  insurance  on  the  ship, 
and  the  supposed  widow  gets  probate  of  her  husband's  will,  and  mar- 
ries and  has  children,  and  after  the  lapse  of  several  years  the  husband 
appears,  it  may  be  a  few  days  before  seven  years  have  expired  ;  and 
the  question  is  asked,  would  it  not  be  shocking  that  in  such  a  case  the 
wife  could  be  found  guilty  of  bigamy? 

My  answer  is,  that  the  Act  of  Parliament  says  in  clear  and  express 
words,  for  very  good  reasons,  as  I  have  already  pointed  out,  that  she 


250  KEGINA   V.    TOLSON.  [CHAP.   IV. 

is  guilty  of  bigamy.  The  only  shocking  fact  would  be  that  some  one, 
for  some  purpose  of  his  own,  had  instituted  the  prosecution.  I  need 
not  say  that  no  public  prosecutor  would  ever  think  of  doing  so,  and  the 
judge  before  whom  the  case  came  on  for  trial  would,  as  my  brother 
Stephen  did  in  the  present  case,  pass  a  nominal  sentence  of  a  day's 
imprisonment  (which  in  effect  is  immediate  discharge),  accompanied, 
if  I  were  tlie  judge,  with  a  disallowance  of  the  costs  of  the  prosecution. 
It  may  be  said,  but  the  woman  is  put  to  some  trouble  and  expense  in 
appearing  before  the  magistrate  (who  would,  of  course,  take  nominal 
bail)  and  in  appearing  to  take  her  trial.  Be  it  so,  but  such  a  case 
would  be  very  rare  indeed.  On  the  other  hand,  see  what  a  door  would 
be  opened  to  collusion  and  mischief  if,  in  the  vast  number  of  cases 
where  men  in  humble  life  leave  their  wives  and  go  abroad,  it  would  be 
a  good  defence  for  a  woman  to  say  and  give  proof,  which  the  jury 
believed,  that  she  had  been  informed  by  some  person  upon  whom  she 
honestly  thought  she  had  reason  to  rely,  and  did  believe,  that  her  hus- 
band was  dead,  whereas  in  fact  she  had  been  imposed  upon,  and  her 
husband  was  alive. 

What  operates  strongly  on  my  mind  is  this,  that  if  the  legislature 
intended  to  prohibit  a  second  marriage  in  the  lifetime  of  a  former  hus- 
band or  wife,  and  to  make  it  a  crime,  subject  to  the  proviso  as  to  seven 
years,  I  do  not  believe  that  language  more  apt  or  precise  could  be  found 
to  give  etfect  to  that  intention  than  the  language  contained  in  the  57th 
section  of  the  Act  in  question.  In  this  view  I  am  fortified  by  several 
sections  of  the  same  Act,  where  the  words  ''unlawfully"  and  "mali- 
ciously and  unlawfully"  are  used  (as  in  s.  23),  and  by  a  comparison 
of  thein  with  the  section  in  question  (s.  57),  where  no  such  words  are 
to  be  found.  I  especially  rely  upon  the  55th  section,  by  which  it  is 
enacted  that  "  whosoever  shall  unlawfully"  (a  word  not  used  in  s.  57) 
"  take  or  cause  to  be  taken  any  unmarried  girl  being  under  the  age  of 
sixteen  years  out  of  the  possession  of  her  father  or  mother,  or  any 
other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty  of 
a  misdemeanor."  Fifteen  out  of  sixteen  judges  held,  in  the  case  of 
Reg.  V.  Prince,  L.  R.  2  C.  C.  154,  that,  notwithstanding  the  use  of  the 
word  "  unlawfully,"  the  fact  of  the  prisoner  believing  and  having 
reason  to  believe  that  the  girl  was  over  sixteen  afforded  no  defence. 
This  decision  is  approved  of  upon  the  present  occasion  by  five  judges, 
making  in  all  twenty  against  the  nine  who  are  in  favor  of  quashing  the 
conviction.  To  the  twenty  I  may,  I  think,  fairly  add  Tindal,  C  J  , 
in  Reg.  v.  Robins,  1  C.  &  K.  456,  and  Willes,  J.,  in  Reg.  v.  Mycock, 
12  Cox  C.  C   28. 

I  rely  also  very  much  upon  the  5th  section  of  the  Act  passed  in  1885 
for  the  better  protection  of  women  and  girls  (48  &  49  Vict.  c.  69),  by 
which  it  was  enacted  that  "any  person  who  unlawfully  and  carnally 
knows  any  girl  above  thirteen  and  under  sixteen  years  shall  be  guilty 
of  a  misdemeanor ;  "  but  to  that  is  added  a  proviso  that  "  it  shall  be  a 
sufficient  defence  if  it  be  made  to  appear  to  the  court  or  jury  before 


SECT.  I.]  REGINA.   V.   TOLSON.  251 

whom  the  charge  shall  be  brought  that  the  person  charged  had  reason- 
able cause  to  believe,  and  did  believe,  that  the  girl  was  of  or  above 
the  age  of  sixteen."  It  is  to  be  observed  that  notwithstanding  the 
word  "  unlawfully"  appears  in  this  section  it  was  considered  necessar}^ 
to  add  the  proviso,  without  which  it  would  have  been  no  defence  that 
the  accused  had  reasonable  cause  to  believe,  and  did  believe,  that  the 
girl  was  of  or  above  the  age  of  sixteen.  Those  who  hold  that  the  con- 
viction in  the  present  case  should  be  quashed  reall}'  import  into  the 
57th  section  of  the  24  &  25  Vict.  c.  100,  the  proviso  which  is  in  the 
5th  section  of  the  48  &  49  Vict.  c.  69,  contrary,  as  it  seems  to  me,  to 
the  decision  in  Reg.  v.  Prince,  and  to  the  hitherto  undisputed  canons 
for  construing  a  statute. 

It  is  said  tliat  an  indictment  for  the  offence  of  bigamy  commences  by 
stating  that  the  accused  feloniously  married,  etc.,  and  consequently  the 
princi[)le  of  mens  rea  is  applicable.  To  this  I  answer  that  it  is  to  the 
language  of  the  Act  of  Parliament,  and  not  to  that  of  the  indictment, 
the  court  has  to  look.  I  consider  the  indictment  would  be  perfectly 
good  if  it  stated  that  the  accused,  being  married,  married  again  in  the 
lifetime  of  his  or  her  wife  or  husband,  (contrary  to  the  statute,  and  so 
was  guilty  of  felon}-. 

I  am  very  sorry  we  had  not  the  advantage  of  having  the  case  argued 
by  counsel  on  behalf  of  the  Crown.  My  reason  for  al)staining  from 
commenting  upon  the  cases  cited  by  Mr.  Henry  in  his  very  able  argu- 
ment for  the  prisoner  is  because  the  difference  of  opinion  among  some 
of  the  judges  in  those  cases  is  as  nothing  compared  with  the  solemn 
decision  of  fifteen  out  of  sixteen  judges  in  the  case  of  Reg.  v.  Prince. 
So  far  as  I  am  aware,  in  none  of  the  cases  cited  by  my  learned  brothers 
was  the  interest  of  third  parties,  such  as  the  fact  of  there  being  children 
of  the  second  marriage,  involved.  I  have  listened  with  attention  to 
the  judgments  which  have  been  delivered,  and  I  have  not  heard  a  single 
observation  with  reference  to  this,  to  my  mind,  important  and  essential 
point.  I  am  absolutely  unable  to  distinguish  Reg.  v.  Prince  from  the 
present  case,  and,  looking  to  the  names  of  the  eminent  judges  who 
constituted  the  majority,  and  to  the  reasons  given  in  their  judgments, 
I  am  of  opinion,  upon  authorit}-  as  well  as  principle,  that  the  conviction 
should  be  affirmed. 

The  only  observation  which  I  wish  to  make  is  (speaking  for  myself 
only)  that  I  agree  with  m\-  learned  brother  Stephen  in  thinking  that 
the  phrases  "  viens  rea"  and  "  non  est  reus  nisi  mens  sit  rea"  are  not 
of  mucli  practical  value,  and  are  not  only  "  likel}'  to  mislead,"  but  are 
"absolutely  misleading."  Whether  the}'  have  had  that  effect  in  the 
present  case  on  the  one  side  or  the  other  it  is  not  for  me  to  .say. 

I  think  the  conviction  should  be  affirmed.  My  brothers  Denman, 
Pollock,  Field,  and  Huddleston  agree  with  this  judgment. 

Conviction  quashed 


252  EEGINA  V.    STEPHENS.  [CHAP.  IV. 


REGINA  V.    STEPHENS. 
Queen's  Bench.     1866. 

[Reported  L.  R.  1  Q.  B.  702.] 

Indictment.  First  count  for  obstructing  tlie  navigation  of  a  public 
river  called  the  Tivy  by  casting  and  throwing,  and  causing  to  be  cast 
and  thrown,  slate  stone  and  rubbish  in  and  upon  the  soil  and  bed  of 
the  river,  and  thereby  raising  and  producing  great  mounds  projecting 
and  extending  along  the  stream  and  waterway  of  the  river. 

Second  count  that  the  defendant  was  the  owner  of  large  quantities 
of  slate  quarried  from  certain  slate  quarries  near  the  river  Tiv}',  and 
that  he  unlawfully  kept,  permitted,  and  suffered  to  be  and  remain  large 
quaniities  of  slate  sunk  in  the  river,  so  that  the  navigation  of  the  river 
was  obstructed. 

Flea,  not  guilty. 

The  indictment  was  tried  before  Blackburn,  J.,  at  the  last  spring 
assizes  for  Pembrokeshire,  when  the  following  facts  were  proved  :  — 
The  Tivy  is  a  public  navigable  river  which  flows  through  Llechryd 
Bridge,  thence  b^-  Kilgerran  Castle,  and  from  thence  past  the  town  of 
Cardigan  to  the  sea.  About  twenty  years  ago  the  Ti\\v  was  navigable 
to  within  a  quarter  of  a  mile  of  Llechryd  Bridge,  from  which  place  a 
considerable  traffic  was  carried  on  in  limestone  and  culm  by  means  of 
lighters. 

The  defendant  is  the  owner  of  a  slate  quarr}'  called  the  Castle  Quarry, 
situate  near  the  Castle  of  Kilgerran,  which  he  has  extensively  worked 
since  1842.  The  defendant  had  no  spoil  bank  at  the  quarry.  The 
rubbish  fi-om  the  quarry  was  stacked  about  five  or  six  yards  from 
the  edge  of  the  river.  Previous  to  1847,  the  defendant  erected  a  wall 
to  prevent  it  from  falling  into  the  river,  but  in  that  year  a  heavy  flood 
carried  away  the  wall,  and  with  it  large  quantities  of  the  rubbish. 
Quantities  of  additional  rubbish  were  from  time  to  time  shot  by  the 
defendant's  workmen  on  the  same  spot,  and  so  slid  into  the  river.  By 
these  means  the  navigation  was  obstructed,  so  that  even  small  boats 
were  prevented  from  coming  up  to  Llechryd  Bridge. 

The  defendant  being  upwards  of  eighty  years  of  age  was  unable  per- 
sonall}-  to  superintend  the  working  of  the  quarry,  which  was  managed 
for  his  benefit  by  his  sons.  The  defendant's  counsel  was  prepared  to 
offer  evidence  that  the  workmen  at  the  quarry  had  been  prohibited  both 
by  the  defendant  and  his  sons  from  thus  depositing  the  rubbish  ;  and 
chat  they  had  been  told  to  place  the  rubbish  in  the  old  excavations 
and  in  a  place  provided  for  that  purpose.  The  learned  judge  intimated 
that  the  evidence  was  immaterial ;  and  he  directed  the  jury  that  as  the 
defendant  was  the  proprietor  of  the  quarry,  the  quarrying  of  which  was 
carried  on  for  his  benefit,  it  was  his  duty  to  take  all  proper  precautions 


SECT.  I.]  EEGINA   V.    STEPHENS.  253 

to  prevent  the  rubbish  from  falling  into  the  river,  and  that  if  a  sub- 
stantial part  of  the  rubbisli  went  into  the  river  from  having  been  im- 
projjerly  stacked  so  near  tlie  river  as  to  fall  into  it,  the  defendant  was 
guilt}'  of  having  caused  a  nuisance,  altliough  the  acts  might  have  been 
committed  by  his  workmen,  without  his  knowledge  and  against  his 
general  orders.     The  jury  found  a  verdict  of  guilty. 

A  rule  having  been  obtained  for  a  new  trial,  on  the  ground  that  the 
judge  misdirected  the  jury  in  telling  tlieni  that  the  defendant  would  be 
liable  for  the  acts  of  his  workmen  in  depositing  the  rubbish  from  the 
quarries  so  as  to  become  a  nuisance,  though  without  the  defendant's 
knowledge  and  against  his  orders, 

JI.  S.  Giffard^  Q.  C,  and  Poland,  showed  cause. ^ 

J.  W.  Boicen  and  Hughes,  in  support  of  the  rule. 

Mellor,  J.  In  this  case  I  am  of  opinion,  and  in  my  opinion  my 
Brother  Shee  concurs,  that  the  direction  of  my  Brother  Blackburn 
was  right.  It  is  quite  true  that  this  in  point  of  form  is  a  proceeding 
of  a  criminal  nature,  but  in  substance  I  think  it  is  in  the  nature  of  a 
civil  proceeding,  and  I  can  see  no  reason  why  a  different  rule  should 
prevail  with  regard  to  such  an  act  as  is  charged  in  this  indictment 
between  proceedings  which  are  civil  and  proceedings  which  are  crim- 
inal. I  think  there  may  be  nuisances  of  such  a  character  that  the  rule 
I  am  applying  here,  would  not  be  applicable  to  them,  but  here  it  is  per- 
fectly clear  that  the  only  reason  for  proceeding  criminally  is  that  the 
nuisance,  instead  of  being  merely  a  nuisance  affecting  an  individual,  or 
one  or  two  individuals,  affects  the  public  at  large,  and  no  private  indi- 
vidual, without  receiving  some  special  injury,  could  have  maintained  an 
action.  Then  if  the  contention  of  those  who  say  the  direction  is  wrona 
is  to  prevail,  the  public  would  have  great  difficulty  in  getting  redress. 
The  object  of  this  indictment  is  to  prevent  the  recurrence  of  the  nui- 
sance. The  prosecutor  cannot  proceed  by  action,  but  must  proceed  bv 
indictment,  and  if  this  were  strictly  a  criminal  proceeding  the  prosecu- 
tion would  be  met  with  tlie  objection  that  there  was  no  mens  ren :  that 
the  indictment  charged  the  defendant  with  a  criminal  offence,  when  in 
reality  there  was  no  proof  that  the  defendant  knew  of  tlie  act,  or  that 
lie  himself  gave  orders  to  his  servants  to  do  tlie  particular  act  he  is 
chai-ged  with ;  still  at  the  same  time  it  is  perfectly  clear  that  the  defend- 
ant finds  the  capital,  and  carries  on  the  business  which  causes  the 
nuisance,  and  it  is  carried  on  for  his  benefit ;  although  frou'.  ?ge  or  in- 
firmity the  defendant  is  unable  to  go  to  the  premises,  the  business  is 
cjirried  on  for  him  bv  his  sons,  or  at  all  events  by  his  ageius.  Under 
these  circumstances  the  defendant  must  necessarily  give  to  his  servants 
or  agents  all  the  authority  that  is  incident  to  the  carrying  on  of  the  busi- 
ness. It  is  not  because  he  had  at  some  time  or  other  given  directions 
that  it  should  be  carried  on  so  as  not  to  allow  the  refuse  from  the  works 
to  fall  into  the  river,  and  desired  his  servants  to  provide  some  other 

1  Arffuinents  of  counsel  are  omitted. 


254  REGINA  V.    STEPHENS.  [CHAP.  IV. 

place  for  depositing  it,  that  when  it  has  fallen  into  the  river,  aiKl  lu.s 
become  prejudicial  to  the  public,  he  can  say  he  is  not  liable  on  an  indict- 
ment for  a  nuisance  caused  by  the  acts  of  his  servants.  It  appears  to 
me  that  all  it  was  necessary  to  prove  is,  that  the  nuisance  was  caused 
in  the  carrying  on  of  the  works  of  the  quarry.  That  being  so  my 
Brother  Blackburn's  direction  to  the  jury  was  quite  right. 

I  agree  that  the  authorities  that  bear  directly  upon  the  case  are  very 
few.  In  the  case  of  Reg  v.  Russell,  3  E.  &  B.  942,  23  L.  J.  M.  C.  173, 
the  observations  of  Lord  Campbell  might  have  been  justified  by  the  cir- 
cumstances of  that  case,  though  as  I  understand  it  the  judgment  of  the 
other  judges  did  not  proceed  on  tlie  same  reasons.  It  is  therefore  onl}- 
t'ae  opinion  of  Lord  Campbell  as  applied  to  that  case.  Whether  there 
iii  or  is  not  any  distinction  between  that  case  and  tiie  present  may  be 
open  to  question  ;  but  if  there  is  no  distinction,  I  should  be  prepared 
rather  to  have  acted  upon  the  reasons  which  influenced  the  other  judges 
than  those  which  influenced  Lord  Campbell.  Inasmuch  as  the  object 
of  the  indictment  is  not  to  punish  the  defendant,  but  really  to  prevent  the 
nuisance  from  being  continued,  I  think  that  tlie  evidence  which  would 
support  a  civil  action  would  be  sufficient  to  support  an  indictment. 

The  rule  must  be  discharged.  As  I  have  said,  m}-  Brother  Shee  con- 
curs with  me  in  that  opinion. 

Blackburn,  J.  I  need  only  add  that  I  see  no  reason  to  change  the 
opinion  I  formed  at  the  trial.  I  only  wish  to  guard  myself  against  it 
being  supposed  that  either  at  the  trial  or  now,  the  general  rule  that  a 
principal  is  not  criminally  answerable  for  the  act  of  his  agent  is  in- 
fringed. All  that  it  is  necessary  to  say  is  this,  that  where  a  person  main- 
tains works  by  his  capital,  and  employs  servants,  and  so  carries  on  the 
works  as  in  fact  to  cause  a  nuisance  to  a  private  right,  for  which  an 
action  would  lie,  if  the  same  nuisance  inflicts  an  injury  upon  a  public 
right  the  remedy  for  which  would  be  by  indictment,  the  evidence  which 
would  maintain  the  action  would  also  support  the  indictment.  That  is 
all  that  it  was  necessary  to  decide  and  all  that  is  decided. 

Hule  discharged. 


SECT.  I.]  CHISHOLM   V.   DOULTON.  255 


CHISHOLM  V.   DOULTON. 

High  Court  of  Justice,  Queen's  Bench  Division.     1889. 

[Reported  22  Q.  B.  D.  736.] 

Case  stated  b}-  a  metropolitan  police  magistrate  under  20  &,  21  Vict 
c.  43. 

The  respondent,  the  owner  and  occupier  of  certain  pottery  works 
situate  in  the  metropolis,  was  summoned  by  the  appellant,  one  of  the 
chief  inspectors  of  tlie  metropolitan  police,  for  having  on  April  18, 
1888,  negligently  used  a  furnace  employed  in  his  pottery  works  so  that 
the  smoke  was  not  effectually  consumed  or  burnt,  contrary  to  the  pro- 
visions of  16  &  17  Vict.  c.  128,  s.  1.^ 

The  magistrate  dismissed  the  summons  subject  to  a  case,  of  which 
the  material  facts  were  as  follows:  Smoke  issued  for  the  space  of  ten 
minutes  on  the  morning  of  the  day  in  question  from  one  of  tlie  respon- 
dent's furnaces,  but  the  furnace  was  properly  constructed,  and  the 
smoke  arose  by  the  act  of  the  stoker  or  person  who  lighted  the  fire, 
who  might  by  proper  care  have  prevented  the  occurrence.  Neither  the 
respondent  nor  his  foreman  were  guilty  of  any  negligence.  The  ques- 
tion for  the  opinion  of  the  Court  was  whether  the  respondent  was 
liable  for  the  negligence  of  the  stoker. 

Field,  J.  M}-  mind  has  not  been  altogether  free  from  doubt  during 
the  argument,  but  I  think  upon  the  whole  that  the  true  conclusion  to 
arrive  at  upon  the  construction  of  the  Act  is  that  the  respondent  can- 
not be  convicted  upon  the  facts  found  by  the  magistrate.  The  offence 
of  which  it  is  sought  to  convict  him  is  (to  put  it  shortly)  that  of  negli- 
gently using  a  furnace  so  as  to  emit  black  smoke,  which  is  the  thing 

1  By  the  Smoke  Nuisance  (Metropolis)  Act,  1853  (16  &  17  Vict  c.  128,  s.  1),  it  is 
provided  that  "  every  furnace  employed  in  any  mill,  factory,  ...  or  other  buildings 
used  for  the  purpose  of  trade  or  manufacture  within  the  metropolis,  .  .  .  shall  in  all 
cases  be  constructed  or  altered  so  as  to  consume  or  burn  the  smoke  arising  from  such 
furnace;  and  if  any  person  shall  .  .  .  within  the  metropolis  use  any  such  furnace 
which  shall  not  be  constructed  so  as  to  consume  or  burn  its  own  smoke,  or  shall  so 
negligently  use  any  such  furnace  as  that  the  smoke  arising  therefrom  shall  not  be  effec- 
tually consumed  or  burnt,  or  shall  carry^  on  any  trade  or  business  which  sliall  occasion 
any  noxious  or  offensive  effluvia,  or  otherwise  annoy  the  neighbourhood  or  inhabitants, 
without  using  the  best  practicable  means  for  preventing  or  counteracting  such  smoke 
or  other  annoyance,  every  person  so  offending,  being  the  owner  or  occupier  of  the 
premises,  or  being  a  foreman  or  other  person  employed  by  such  owner  or  occupier, 
shall,  upon  a  summary  conviction  for  such  offence  before  any  justice  or  justices,  forfeit 
and  pay  a  sum  of  not  more  than  five  pounds  nor  less  than  forty  shillings,  and  upon  a 
second  conviction  for  such  offence  the  sum  of  ten  pounds,  and  for  each  subsequent 
conviction  a  sum  doubled  the  amount  of  the  penalty  imposed  for  the  last  preceding 
conviction." 


256  CHISHOLM    V.    DOULTON.  [CHAP.  IV. 

that  the  legislature  was  desirous  of  i)reventing.  The  magistrate  has 
found  that  the  furnace  was  properl}'  constructed,  and  that  the  respon- 
dent had  gone  to  great  expense  in  taking  precautions  against  the  dis- 
charge of  smoke  from  his  furnaces.  He  also  found  that  the  respondent 
had  taken  care  to  emplo}'  an  efficient  foreman  to  superintend  the  vari- 
ous persons  having  control  of  the  furnaces.  In  short,  the  respondent 
was  not  personally  guilt}'  of  au}^  negligence  whatever.  The  negligence 
which  caused  the  emission  of  smoke  on  the  particular  morning  in  ques- 
tion was  that  of  the  stoker  who  lit  the  fire.  And  the  question  is, 
whether  the  respondent  is  criminally  answerable  for  the  negligence  of 
his  servant. 

Now  the  general  rule  of  law  is  that  a  person  cannot  be  convicted  and 
punished  in  a  proceeding  of  a  criminal  nature  unless  it  can  be  shewn 
that  he  had  a  guilt\^  mind.  And  though  the  legislature  undoubtedl}' 
ma\'  enact,  as  in  the  case  of  certain  of  the  offences  under  this  very  Act 
it  has  enacted,  that  pei'sons  shall  be  criminallv  responsible  for  the 
doing  of  particular  acts,  even  though  they  have  no  guilty  mind  in 
doing  them,  3'et  it  is  for  the  prosecution  in  each  case  to  make  out 
clearl}'  that  the  legislature  has  in  fact  so  enacted. 

It  is  said  that  the  respondent  is  liable  because  he  in  fact  used  this 
furnace  for  the  purposes  of  his  trade.  I  agree  that  he  used  it,  for  I 
entertain  no  doubt  that  if  this  were  a  civil  proceeding  for  damages  he 
would  be  liable,  and  yet  he  could  in  such  proceeding  only  be  liable 
if  he  were  the  person  using  it.  But  the  mere  use  of  a  furnace  so  as  to 
emit  smoke  is  not  an  offence  against  the  section,  the  offence  is  the 
using  of  it  negligentl}'.  Suppose  that  b}'  an  accident  which  no  care 
could  have  guarded  against  the  furnace  had  got  out  of  order,  whereb}^ 
an  emission  of  smoke  ensued,  that  could  not  be  said  to  be  an  offence, 
for  there  would  be  no  negligence.  The  essence  of  the  offence  is  that 
it  should  be  negligent.  And  here  the  respondent  took  all  the  care  he 
could. 

Looking  at  the  cases  in  which  it  has  been  held  that  no  appeal  lies  to 
the  Court  of  Appeal  from  decisions  relating  to  public  nuisances,  I  am 
forced  to  the  conclusion  that  this  is  not  a  mere  civil  proceeding,  but 
that  the  offence  charged  against  the  respondent  is  a  criminal  offence. 
No  doubt  in  the  case  of  Reg.  v.  Stephens,  Law  Rep.  1  Q.  B.  702,  the 
learned  judges  came  to  the  conclusion  that  in  that  particular  case  the 
proceeding  war,  civil.  AVhether  they  were  right  or  wi'ong  in  that  view 
it  is  not  necessar}'  for  me  to  express  any  opinion,  but  the}'  carefully 
guarded  themselves  against  being  supposed  to  infringe  on  the  general 
rule  of  law  that  a  master  is  not  criminally  responsible  for  the  acts  of 
his  servants.  That  case  must  be  taken  to  stand  upon  its  own  facts. 
The  case  here  being  a  criminal  one  I  must  apply  the  general  rule,  and 
by  that  rule  the  respondent  must  be  acquitted. 

The  conclusion  that  the  respondent  is  not  criminally  liable  for  his 
servant's  negligence  is  much  fortified  by  a  comparison  of  the  provi- 


SECT.  I.J  CHISHOLM    V.   DOULTON.  257 

sions  of  s.  1  with  those  of  s.  2.  Sect,  1  applies  to  a  stationary  thing, 
a  furnace  fixed  in  a  building,  and  provides  that  the  person  to  be 
punished  shall  be  the  "  person  so  offending,"  the  person,  that  is  to  say, 
who  negligently  uses  the  furnace  ;  whereas  s.  2  applies  to  a  thing  which 
is  transient,  a  steamer  moving  up  or  down  the  river,  and  provides  that 
the  person  to  be  punished  shall  be  not  the  "  person  so  offending,"  but 
"  the  owner  or  master  or  other  person  having  charge  of  such  vessel." 
From  a  comparison  of  the  language  of  those  two  sections  it  seems  to 
me  that  in. the  one  case  the  intention  of  the  legislature  was  to  strike  at 
the  person  guilt}'  of  the  negligence,  while  in  the  other,  owing  to  the 
difficulty  of  finding  out  who  that  person  was,  it  struck  directly  at  the 
owner  or  person  in  charge.  I  quite  admit  that  this  construction  may 
throw  difficulties  in  the  way  of  securing  convictions  under  the  former 
section,  but  I  must  construe  the  language  as  I  find  it. 

I  must  also  confess  that  the  provision  of  s.  1  as  to  the  increase  of 
the  penalties  on  repeated  convictions  raises  a  doubt  in  my  mind  as  to 
the  correctness  of  our  construction.  The  penalt}-  paj'able  on  the  first 
conviction  is  one  which,  with  the  costs,  there  would  be  great  difficulty 
in  getting  paid  by  a  mere  stoker ;  and  on  each  subsequent  conviction 
the  penalty  is  to  be  doubled,  so  that  if  the  stoker  is  the  person  respon- 
sible the  penalty  is  to  be  recovered  from  a  person  who  is  utterly  unable 
to  paj'  it.  This  certainly  does  seem  to  suggest  that  the  person  respon- 
sible is  the  person  to  whom  the  premises  belong,  and  who  is  capable  of 
a  series  of  offences,  tlie  opportunit}-  of  committing  wliich  a  stoker 
would   probably  not  be  given. 

But  although  I  feel  the  difficult}'  I  think  it  better  to  be  bound  by  the 
general  rule  of  law  that  a  man  cannot  be  convicted  of  a  criminal 
offence  unless  he  had  a  criminal  mind.  I  am  therefore  of  opinion  that 
the  magistrate  was  right,  and  that  this  appeal  must  be  dismissed. 

Cave,  J.  I  am  of  the  same  opinion.  It  is  a  general  principle  of 
our  criminal  law  that  there  must  be  as  an  essential  ingredient  in  a 
criminal  offence  some  blameworthy  condition  of  mind.  Sometimes  it 
is  negligence,  sometimes  malice,  sometimes  guilty  knowledge  —  but  as 
a  general  rule  there  must  be  something  of  that  kind  which  is  designated 
by  the  expression  mens  rea.  Moreover,  it  is  a  principle  of  our  criminal 
law  that  the  condition  of  mind  of  the  servant  is  not  to  be  imputed  to 
the  master.  A  master  is  not  criminally  responsible  for  a  death  caused 
by  his  servant's  negligence,  and  still  less  for  an  offence  depending  on 
the  servant's  malice  ;  nor  can  a  master  be  held  liable  for  the  guilt  of  his 
•servant  in  receiving  goods  knowing  them  to  have  been  stolen.  And 
tliis  principle  of  the  common  law  applies  also  to  statutory  offences,  with 
this  difference,  that  it  is  in  the  power  of  the  legislature,  if  it  so  pleases, 
to  enact,  and  in  some  cases  it  has  enacted,  that  a  man  may  be  con- 
victed and  punished  for  an  offence  although  there  was  no  blameworthy 
condition  of  mind  about  him  ;  but,  inasmuch  as  to  do  so  is  contrary  to 
the  general  principle  of  the  law,  it  lies  on  those  who  assert  that  the 


258  CHISHOLM    V.    DOULTON.  [CHAP.  IV. 

legislature  has  so  enacted  to  make  it  out  convincingly  by  the  language 
of  the  statute ;  for  we  ought  not  lightly  to  presume  that  the  legislature 
intended  that  A.  sliould  be  punished  for  the  fault  of  B. 

Now  apply  those  principles  to  the  statute  in  question.  Sect.  1 
enacts  that  every  furnace  sliall  be  "  constructed  or  altered  so  as  to 
consume  or  burn  the  smoke  arising  from  such  furnace."  Then  comes 
the  part  of  the  section  which  affixes  penalties  for  various  acts  tending 
to  produce  the  evil  against  which  the  legislation  is  directed.  "  If  any 
')erson  shall  .  .  .  use  any  such  furnace  which  shall  not  be  constructed 
so  as  to  consume  or  burn  its  own  smoke."  Now  there  no  condition  of 
mind  is  required  as  an  element  in  the  offence  ;  and  we  ought  to  hold 
with  regard  to  that  offence  that  the  owner  of  the  works,  although  not 
cognisant  that  his  furnace  is  incapable  of  consuming  its  own  smoke,  is 
liable  to  be  convicted  if  it  in  fact  is  so;  for  it  is  expressly  enacted  that 
if  he  uses  a  furnace  not  properly  constructed  he  shall  be  liable  to  the 
penalty,  and  he  certainly  may  use  it  by  his  servants.  Then,  passing 
over  the  middle  clause  for  a  moment,  another  part  of  the  section  enacts 
that  if  any  person  "  shall  carry  on  any  trade  or  business  which  shall 
occasion  any  noxious  or  offensive  effluvia,  or  otherwise  annoy  the 
neighbours  or  inhabitants,  without  using  the  best  practicable  means  for 
preventing  or  counteracting  such  smoke  or  other  annoyance,"  he  shall 
be  liable.  There,  again,  a  mens  rea  is  not  essential  to  the  commission 
of  the  offence,  the  owner  of  the  premises  is  absolutely  liable  if  the 
trade  is  carried  on  in  such  a  manner.  Now  go  back  to  the  clause 
under  which  the  respondent  has  been  summoned,  "  or  shall  so  negli- 
gently use  any  such  furnace  as  that  the  smoke  arising  therefrom  shall 
not  be  effectually  consumed."  This  differs  from  the  other  clauses  in 
that  it  introduces  the  word  "negligently,"  a  word  which  imports  a 
blamable  condition  of  mind.  If  that  word  were  not  tliere,  the  owner 
would  be  responsible  for  the  use  of  the  furnace  in  such  a  way  that  the 
smoke  was  not  consumed  although  the  use  was  by  his  servants  and  not 
personally  by  himself.  But  the  legislature  has  chosen  to  make  negli- 
gence an  essential  ingredient  in  this  particular  offence.  And,  al- 
though the  decisions  under  the  Licensing  Acts  have  established  that, 
where  a  statute  has  expressly  prohibited  the  doing  of  something  with- 
out reference  to  the  condition  of  mind  of  the  party  doing  it,  it  may 
under  certain  circumstances,  and  having  regard  to  the  object  of  the 
statute,  be  reasonable  to  infer  that  the  legislature  intended  that  the 
master  should  be  responsible  if  his  servant  disobeyed  the  prohibition, 
yet  so  far  as  I  know  no  statute  has  ever  yet  been  judicially  interpreted 
as  enacting  that  where  negligence  is  an  essential  ingredient  in  the 
offence  a  master  is  to  be  responsible  for  the  negligence  of  his  servant. 

Then  is  there  anything  else  m  the  section  which  points  to  a  different 
interpretation  of  the  clause  which  we  have  to  construe.  I  think  there 
is  not.  The  section  goes  on  —  "  Every  person  so  offending,  being  the 
owner  or  occupier  of  the  premises,  or  being  a  foreman  or  other  person 


SECT.  I.]  SHERRAS    V.    DE    ItUTZEN.  259 

employed  by  such  owner  or  occupier,"  shall  be  liable  to  the  penalties 
provided.  That  no  doubt  clearly  imports  that  under  certain  circum- 
stances the  owner  or  occupier  may  be  guilty  of  some  of  the  offences 
created  by  the  section;  but  it  creates  no  difficulty,  for  the  words  would 
be  satisfied  by  reference  to  the  first-mentioned  offence,  that  of  using 
a  furnace  not  properly  constructed,  which,  as  I  have  said,  would  clearly 
be  an  offence  in  the  owner.  And,  further,  the  owner  might  be  guilty 
of  the  offence  of  negligently  using  the  furnace,  provided  there  was 
personal  negligence  on  his  part,  as,  for  instance,  if  he  were  to  employ 
an  incompetent  person  to  attend  to  tlie  furnace,  or  neglected  to  pro- 
vide the  person  employed  with  the  proper  appliances  to  prevent  smoke 
arising,  or  if  he  continued  to  retain  in  his  employment  a  person  who, 
by  allowing  smoke  to  be  emitted,  shewed  that  he  was  unfit  to  have  the 
control  of  the  furnace.  On  the  other  hand  the  words  above  referred 
to  equally  clearly  import  that  under  certain  circumstances  the  person 
employed  by  the  owner  may  be  guilt}-  of  some  of  the  offences  created 
by  the  section  and  liable  to  the  penalties  thereto  attached.  And  this, 
to  my  mind,  at  once  disposes  of  the  difficulty  suggested  with  regard  to 
the  magnitude  of  the  penalties,  which  it  was  said  a  stoker  would  be 
unable  to  pay,  and  which  it  was  said  consequently  pointed  to  the 
owner  as  the  sole  person  who  was  intended  to  be  held  responsible. 

I  should  be  quite  content  to  rest  my  judgment  on  a  consideration  of 
the  language  of  the  1st  section  alone.  But  the  case  for  the  respondent 
is  still  stronger  when  we  come  to  look  at  the  language  of  the  2nd 
section.  The  language  under  that  section  is  very  different.  The 
legislature  has  there  clearly  expressed  its  intention  that  in  the  event  of 
the  stoker  on  board  a  steamer  being  guilty  of  negligence  in  the  use 
of  the  furnace,  the  owner  or  person  in  charge  of  the  vessel  should  be 
responsible.  But  the  fact  that  tlie  legislature  where  it  intended  that 
the  master  should  be  responsible  for  the  negligence  of  the  servant  has 
expressed  that  intention  in  plain  language,  affords  a  strong  reason  why 
we  should  not  infer  such  an  intention  wliere  it  has  not  expressed  it 
clearly. 

For  these  reasons  I  think  that  the  decision  of  the  magistrate  must 
be  affirmed.  Appeal  dismissed. 


SHERRAS  V.   DE  RUTZEN. 
High  Court  of  Justick,  Queen's  Bench  Division.     1895. 

[Reported  1895,  1  Q.  B.  918.] 

The  appellant  was  the  licensee  of  a  public-house,  and  was  convicted 
before  a  metropolitan  police  magistrate  under  s.  16,  sub-s.  2,  of  the 
Licensing  Act,  1872,  for  having  unlawfully  supplied  liquor  to  a  police 
constable  on  duty  without  having  the  authority  of  a  superior  officer  of 
such  constable  for  so  doing. 


260  SHEREAS   V.    DE    KUTZEN.  [CHAP.  IV. 

It  appeared  that  the  appellant's  public-house  was  situated  nearl}- 
opposite  a  police-station,  and  was  much  frequented  by  the  police 
when  off  duty  and  that  on  July  16,  1894,  at  about  4.40,  the  police 
constable  in  question,  being  then  on  duty,  entered  the  appellant's 
house  and  was  served  with  liquor  by  the  appellant's  daughter  in  his 
presence.  Prior  to  entering  the  house  the  police  constable  had  re- 
moved his  armlet,  and  it  was  admitted  that  if  a  police  constable  is  not 
wearing  his  armlet  that  is  an  indication  that  he  is  off  duty.  Neither 
the  appellant  nor  his  daughter  made  any  inquiry  of  the  police  con- 
stable as  to  whether  he  was  or  was  not  on  duty,  but  they  took  it  for 
granted  that  he  was  off  duty  iu  consequence  of  his  armlet  being  off, 
and  served  him  with  liquor  under  that  belief.^ 

Day,  J.  I  am  clearly  of  opinion  that  this  conviction  ought  to  be 
quashed.  This  police  constable  comes  into  the  appellant's  house 
without  his  armlet,  and  with  every  appearance  of  being  off  duty.  The 
house  was  in  the  immediate  neighborhood  of  the  police-station,  and  the 
appellant  believed,  and  he  had  very  natural  grounds  for  believing,  that 
the  constable  was  off  duty.  In  that  belief  he  accordingly  served  him 
with  liquor.  As  a  matter  of  fact,  the  constable  was  on  duty  ;  but  does 
that  fact  make  the  innocent  act  of  the  appellant  an  offence?  I  do  not 
think  it  does.  He  had  no  intention  to  do  a  wrongful  act ;  he  acted  in 
the  bona  fide  belief  that  the  constable  was  off  duty.  It  seems  to  me 
that  the  contention  that  he  committed  an  offence  is  utterly  erroneous. 
An  argument  has  been  based  on  the  appearance  of  the  word  "  know- 
ingly "  in  sub-s.  1  of  s.  16,  and  its  omission  in  sub-s.  2.  In  my  opin- 
ion the  only  effect  of  this  is  to  shift  the  burden  of  proof.  In  cases 
under  sub-s.  1  it  is  for  the  prosecution  to  prove  the  knowledge,  while  in 
cases  under  sub-s.  2,  the  defendant  has  to  prove  that  he  did  not  know. 
That  is  the  only  inference  I  draw  from  the  insertion  of  the  word  "  know- 
ingly "  in  the  one  sub-section  and  its  omission  in  the  other. 

It  appears  to  me  that  it  would  be  straining  the  law  to  say  that  this 
publican,  acting  as  he  did  in  the  bona  fide  belief  that  the  constable  was 
off  duty,  and  having  reasonable  grounds  for  that  belief,  was  neverthe- 
less guilty  of  an  offence  against  the  section,  for  which  he  was  liable 
both  to  a  penalty  and  to  have  his  license  indorsed. 

Wright.  J.  I  am  of  the  same  opinion.  There  are  many  cases  on  the 
subject,  and  it  is  not  very  easy  to  reconcile  them.  There  is  a  presump- 
tion that  mens  rea,  an  evil  intention,  or  a  knowledge  of  the  wrongful- 
ness of  the  act.  is  an  essential  ingredient  in  every  offence  ;  but  that 
presumption  is  liable  to  be  displaced  either  by  the  words  of  the  statute 
creating  the  offence  or  by  the  sul)ject-matt,er  with  which  it  deals,  and 
both  must  be  considered  :  Nichols  v.  Hall,  Law  Rep.  8  C.  P.  322.  One 
of  the  most  remarkable  exceptions  was  in  the  case  of  bigamy.  It 
was  held  by  all  the  judges,  on  the  statute  1  Jac.  1,  c.  11,  that  a  man 
was  rightlv  convicted   of  bigam}'  who  had   married  after  an  invalid 

1  The  statement  of  facts  has  been  slightly  coudeused.    The  arguments  are  omitted 


SECT.  I.]  SHERRAS   V.   DE    RUTZEN.  261 

Scotch  divorce,  which  had  been  obtained  in  good  faith,  and  the  validity 
of  which  he  had  no  reason  to  doubt:  Lolley's  Case,  R.  &  R.  237.  An- 
other exception,  apparently  grounded  on  the  language  of  a  statute,  is 
Prince's  Case,  Law  Rep.  2  C.  C.  154,  where  it  was  held  by  filleen  judges 
against  one  that  a  man  was  guilty  of  abduction  of  a  girl  under  sixteen, 
although  he  believed,  in  good  faith  and  on  reasonable  grounds,  that  she 
was  over  that  age.  Apart  from  isolated  and  extreme  cases  of  this  kind, 
the  principal  classes  of  exceptions  may  perhaps  be  reduced  to  tluee. 
One  is  a  class  of  acts  which,  in  the  language  of  Lush,  J.,  in  Davies  c. 
Harvey,  Law  Rep.  9  Q.  B.  433,  are  not  criminal  in  any  real  sense,  but 
are  acts  which  in  the  public  interest  are  prohibited  under  a  penalty-. 
Several  such  instances  are  to  be  found  in  the  decisions  on  the  Revenue 
Statutes,  e.  g.,  Attorney  General  v.  Lockwood,  9  M.  &,  W.  378,  where 
the  innocent  possession  of  liquorice  by  a  beer  retailer  was  lield  an 
offence.  So  under  the  Adulteration  Acts,  Reg.  v.  Woodrow,  15  M.  & 
W.  404,  as  to  the  innocent  possession  of  adulterated  tobacco  ;  Fitz- 
patrick  v.  Kelly,  Law  Rep.  8  Q.  B.  337,  and  Roberts  v.  Egerton,  Law 
Rep.  9  Q.  B.  494,  as  to  the  sale  of  adulterated  food.  So  under  the 
Game  Acts,  as  to  the  innocent  possession  of  game  by  a  carrier  :  Rex  v. 
Marsh,  2  B.  &  C.  717.  So  as  to  the  liability  of  a  guardian  of  the  poor, 
whose  partner,  unknown  to  him,  supplied  goods  for  the  poor:  Davies 
V.  Harvey,  Law  Rep.  9  Q.  B.  433.  To  the  same  head  may  be  referred 
Reg.  V.  Bishop,  5  Q.  B.  D.  259,  where  a  person  was  held  rightly  con- 
victed of  receiving  lunatics  in  an  unlicensed  house,  although  the  jury 
found  that  he  honestly  and  on  reasonable  grounds  believed  that  they 
were  not  lunatics.  Another  class  comprehends  some,  and  perhaps  all, 
public  nuisances :  Reg.  v.  Stephens,  Law  Rep.  1  Q.  B.  702,  where  the 
employer  was  held  liable  on  indictment  for  a  nuisance  caused  by  work- 
men without  his  knowledge  and  contrary  to  his  orders  ;  and  so  in  Rex 
V.  Medley,  6  C.  &  P.  292,  and  Barnes  v.  Akroyd,  Law  Rep.  7  Q.  B.  474. 
Lastly,  there  may  be  cases  in  which,  although  the  proceeding  is  criminal 
in  form,  it  is  really  only  a  summary  mode  of  enforcing  a  civil  right : 
see  per  Williams  and  Willes,  J  J.,  in  Morden  v.  Porter,  7  C.  B.  (N.  S.) 
641;  29  L.  J.  (M.  C.)  213,  as  to  unintentional  trespass  in  pursuit  of 
game  ;  Lee  v.  Simpson,  3  C.  B.  871,  as  to  unconscious  dramatic  piracy; 
and  Hargreaves  v.  Diddams,  Law  Rep.  10  Q.  B.  582,  as  to  a  bona  fide 
belief  in  a  legally  impossible  right  to  fish.  But,  except  in  such  cases 
as  these,  there  must  in  general  be  guilty  knowledge  on  the  part  of  the 
defendant,  or  of  some  one  whom  he  has  put  in  his  place  to  act  for  him, 
generally,  or  in  the  particular  matter,  in  order  to  constitute  an  offence. 
It  is  plain  that  if  guilty  knowledge  is  not  necessary,  no  care  on  the  part 
of  the  publican  could  save  him  from  a  conviction  under  s.  16,  sub-s.  2, 
since  it  would  be  as  easy  for  the  constable  to  deny  that  he  was  on  duty 
when  asked,  or  to  produce  a  forged  permission  from  his  superior  officer, 
as  to  remove  his  armlet  before  entering  the  public-house.  I  am,  there- 
fore, of  opinion  that  this  conviction  ought  to  be  quashed. 

Conviction  quashed. 


262  BANK    OF    NEW    SOUTH   WALES    V.  PIPER.  [CHAP.  IV. 


BANK   OF  NEW  SOUTH   WALES   v.   PIPER. 

Judicial  Committee  of  the  Privy  Council.     1897. 

[Reported  1897,  A.  C.  383.] 

The  judgment  of  their  Lordships  was  delivered  by 

Sir  Richard  Couch.  The  suit  in  this  appeal  was  brought  bj-  the 
respondent  against  tlie  appellants  for  falseh'  and  maliciously  and  with- 
out reasonable  or  probable  cause  making  a  charge  against  him  before 
a  justice  of  the  peace,  upon  which  he  was  summoned  to  appear  at  tlie 
police  court  at  Cowra  in  New  South  Wales,  and  was  committed  for 
trial  at  the  court  of  quarter  sessions  at  Cowra.  Afterwards  the 
attorne\-  general  refused  to  prosecute.  The  defendants  pleaded  not 
guilt}'.  The  trial  took  place  in  March,  1895,  before  Simpson,  J.,  when 
tlie  juiT  found  a  verdict  for  the  plaintiff  for  lOOOZ.  damages.  On  May 
7,  1895,  a  rule  nisi  for  a  new  trial  or  for  a  nonsuit  or  verdict  for  the 
defendants,  pursuant  to  leave  reserved  at  the  trial,  was  granted  by 
the  Supreme  Court.  On  May  11,  1896,  the  rule  was  discharged  b}'  the 
Chief  Justice  and  Owen,  J.,  Stephen,  J.,  the  tiiird  judge,  dissenting. 

The  appellants  are  a  banking  company  incorporated  in  the  Colony 
of  New  South  Wales  by  Act  of  Parliament  and  Deed  of  Settlement. 
The  respondent  is  a  farmer  and  grazier  residing  near  Cowra.  By  a 
deed  of  mortgage  dated  February  29,  1892,  the  respondent  assigned  to 
the  appellants  by  way  of  mortgage  2050  sheep,  ninetj'-five  head  of 
cattle,  and  twelve  horses,  as  a  collateral  securit}^  for  credit  advances 
and  accommodation  to  the  extent  of  250Z.  in  account  current  which  the 
bank  had  agreed  to  grant  to  him.  The  mortgage  was  duly  executed 
and  registered  in  accordance  with  the  provisions  of  the  Act  11  Vict. 
No.  4.     Sect.  7  of  that  Act  is  as  follows  :  — ■ 

"  And  whereas  it  is  expedient,  with  a  view  to  increase  the  public  con- 
fidence in  the  validity  of  such  preferable  liens  on  wool  and  mortgages 
of  live  stock  to  surround  them  with  the  penal  provisions  necessary  for 
the  punishment  of  frauds  :  Be  it  enacted  that  an}-  grantor  of  any  such 
preferable  lien  on  wool  or  of  an}-  mortgage  of  sheep,  cattle,  or  horses 
and  of  their  increase  and  progen}'  under  this  Act,  whether  such  grantor 
shall  be  principal  or  agent,  who  shall  afterwards  by  the  sale  or  delivery 
of  the  wool  under  any  such  lien,  without  the  written  consent  of  the  lienec. 
to  any  purchaser,  pawnee,  or  other  person,  or  by  selling,  steaming, 
or  boiling  down  or  causing  to  be  sold,  steamed,  or  boiled  down  without 
such  written  consent  as  aforesaid  the  sheep  whereon  the  same  shall  be 
erowinff  with  a  view  to  defraud  such  lienee  of  such  wool  or  of  the  value 
thereof,  or  who  shall,  after  the  due  execution  and  registry  of  any  such 
mortgage,  without  the  written  consent  of  the  mortgagee  thereof,  sell  or 
dispose  of  or  steam  or  boil  down,  or  cause  to  be  sold  and  disposed  of  or 


SECT.  I.]  BANK    OF   NEW   SOUTH   WALES    V.   PIPER.  263 

to  be  steamed  or  boiled  down,  any  sheep,  cattle,  or  horses  or  their 
increase  or  progen}',  or  who  shall  in  any  way  or  by  any  means  whatso- 
ever or  howsoever  directly  or  indirectly  destro}',  defeat,  invalidate,  or 
impair,  or  any  other  person  or  persons  who  shall  wilfully  and  knowingly 
incite,  aid,  or  abet  an}'  such  grantor  directly  or  indirectly  to  defeat, 
destro}',  invalidate  or  impair  the  right  of  property  of  any  lienee  in  the 
wool  of  an}'  siieep  mentioned  and  described  in  any  such  registered 
agreement  as  aforesaid,  or  the  right  of  property  of  any  such  mortgagee 
as  aforesaid,  in  an}'  sheep,  cattle,  or  horses  or  their  increase  and  progeny 
mentioned  in  any  mortgage  duly  executed  and  registered  as  aforesaid, 
under  the  provisions  of  this  Act,  shall  be  severally  held  and  deemed 
guilty  of  an  indictable  fraud  and  misdemeanor;  and  being  thereof  dulv 
convicted,  shall  be  severally  liable,  in  the  discretion  of  the  judge  or 
Court  before  whom  any  such  offender  shall  be  so  convicted,  to  fine  or 
imprisonment,  or  to  both  fine  and  imprisonment,  for  any  period  not  ex- 
ceeding three  years  with  or  without  hard  labor  at  the  discretion  of 
such  Court  or  judge." 

In  May,  1893,  whilst  the  mortgage  was  subsisting,  and  the  respon- 
dent was  indebted  thereon  to  the  appellants  in  about  240/.,  the  respon- 
dent, without  their  written  consent,  sold  and  delivered  to  one  Robert 
Philip  King  645  sheep  and  a  number  of  cattle,  part  of  the  sheep  and 
cattle  included  in  the  mortgage.  On  November  3,  1893,  James 
Thomas  Evans,  the  manager  of  the  bank  at  Cowra,  swore  an  infor- 
mation under  s.  7  before  a  justice  of  the  peace  that  the  respondent 
on  or  about  May  19,  1893,  without  the  written  consent  of  the  bank, 
sold  and  disposed  of  the  sheep  and  cattle  to  King.  Upon  this  infor- 
mation the  respondent  was  brought  before  the  justice  of  the  peace  and 
committed  for  trial,  but  the  Attorney-General,  as  already  stated,  re- 
fused to  file  a  bill  against  him.     The  action  was  then  brought. 

At  the  trial  the  respondent  admitted  the  execution  and  registration 
of  the  mortgage  and  the  sale  to  King,  and  did  not  suggest  or  set  up 
that  at  the  time  of  the  sale  he  had  or  believed  himself  to  have  the 
written  consent  of  the  appellants  or  their  manager  to  the  sale  ;  but  he 
swore  that  before  the  sale  he  obtained  the  verbal  consent  of  Evans  to 
it.  At  the  close  of  the  respondent's  case  the  appellants'  counsel  ap- 
plied for  a  nonsuit  on  the  ground  that  on  the  respondent's  evidence  he 
was  in  fact  guilty  of  the  offence  with  which  he  had  been  charged,  and 
that  even  if  it  were  proved  that  the  appellants  had  given  a  verbal  con- 
sent to  the  sale,  it  would  afford  no  answer  to  the  charge  ;  and  that, 
therefore,  upon  the  admitted  facts  there  was  reasonable  and  probable 
cause  for  the  information  and  charge.  The  learned  judge  declined  to 
nonsuit,  but  reserved  leave  to  the  appellants  to  move  to  enter  a  non- 
suit or  a  verdict  for  them.  Evans  was  then  examined  as  a  witness  for 
the  appellants.  He  denied  that  he  gave  the  respondent  any  authority 
orally  or  in  writing  to  make  the  sale  to  King;  but  the  jury,  in  answer 
to  the  first  question  put  to  them  by  the  learned  judge,   found  that 


264  BANK    OF    NEW    SOUTH    WALES    V.    PIPER.  [CHAP.  IV. 

Evans  did  verball}-  authorize  the  sale.  That  must  therefore  be  taken 
as  the  fact.  Two  other  questions  were  submitted  to  the  jury,  one 
being:  "Did  Evans  entertain  an  honest  belief  that  the  plaintiff  was 
guilty  of  the  offence  charged  in  the  information,  and,  if  so,  was  his 
belief  founded  on  such  reasonable  grounds  as  would  lead  an  ordinaril}- 
prudent  and  cautious  man,  placed  in  the  position  of  Mr.  Evans,  to  the 
conclusion  that  the  plaintiff  was  probably  guilty  of  the  offence?"  and 
the  other:  "Did  Evans  honestly  believe  that  the  plaintiff,  having  sold 
and  disposed  of  certain  sheep  and  cattle,  covered  by  the  mortgage  to 
the  bank,  without  written  authority,  although  he  ma}'  have  had  verbal 
authorit}',  was  guilty  of  an  indictable  offence  under  11  Vict.  No.  4,  s. 
7,  and,  if  so,  was  his  belief  founded  on  such  reasonable  grounds  as 
would  lead  a  fairly  cautious  and  prudent  man  in  the  position  of  Mr. 
Evans  to  entertain  such  belief? "  To  both  these  questions  the  jury 
answered  "  No." 

The  decision  of  the  question  whether  there  was  reasonable  or  proba- 
ble cause  for  the  charge  depends  upon  the  construction  of  s.  7.  It  was 
for  the  judge  to  decide  that  question,  as  a  matter  of  law,  upon  the  facts 
admitted  or  found  by  the  jur}'.  It  is  to  be  observed  that  in  the  first 
part  of  s.  7,  which  relates  to  the  sale  or  deliver}'  of  wool  that  is  under 
a  lien,  the  words  "  with  a  view  to  defraud"  are  introduced  as  an  essen- 
tial qualit}'  of  the  offence  ;  but  in  the  part  of  the  section  which  relates 
to  the  sale  and  disposition  of  sheep  or  cattle  that  have  been  mortgaged, 
these  words  are  omitted.  This  cannot  be  considered  to  be  an  uninten- 
tional omission  unless  it  is  shewn  to  be  so  b}'  the  context  of  the  sec- 
tion. Their  Lordships  do  not  see  any  ground  for  construing  the 
section  as  if  the  words  "with  a  view  to  defraud"  had  been  inserted 
in  this  part  of  it.  They  cannot  alter  the  offence  created  bv  the  statute 
by  the  introduction  of  words  which  the  Legislature  has  omitted. 

It  was  certainly  competent  to  the  Legislature  of  New  South  "Wales 
to  define  a  crime  in  such  a  way  as  to  make  the  existence  of  any  state 
of  mind  of  the  perpetrator  immaterial,  and  the  question  is  whether  in 
the  case  of  the  sale  b}-  the  mortgagor  it  has  not  done  so.  The  enact- 
ment in  this  part  of  s.  7,  according  to  the  ordinary  meaning  of  the 
words,  appears  to  tlieir  Lordships  to  provide  that  the  selling  without 
a  written  consent  shall  be  punished  as  if  it  were  a  fraud.  In  their 
Lordships'  opinion  neither  the  preamble  to  the  7th  section  nor  the 
enactment  that  the  persons  offending  shall  be  held  and  deemed  guilty 
of  an  indictable  fraud  justifies  the  opinion  that  an  intent  to  defraud 
must  be  implied,  or  that  it  is  open  to  the  person  charged  to  give  evi- 
dence to  rebut  tlie  presumption  of  fraud.  It  is  the  intention  of  the 
Legislature  to  make  a  sale  by  the  mortgagor  without  the  written  con- 
sent of  the  mortgagee  a  criminal  offence.  It  was  strongly  urged  by 
the  respondent's  counsel  that  in  order  to  the  constitution  of  a  crime, 
whether  common  law  or  statutory,  there  must  be  meiis  rea  on  the  part 
of  the  accused,  and  that  he  may  avoid  conviction  by  shewing  that  such 


SECT.  I.]  BANK   OF   NEW   SOUTH   "WALES   V.    PIPEK.  265 

mens  did  not  exist.  That  is  a  proposition  which  tlicir  Lordships  do  not 
desire  to  dispute  ;  but  the  questions  whetlier  a  particular  intent  is  made 
an  element  of  the  statutory  crime,  and  when  that  is  not  the  ease, 
whether  there  was  an  absence  of  nie/is  rea  in  the  accused,  are  questions 
entirely  different,  and  depend  upon  different  considerations.  In  cases 
when  the  statute  requires  a  motive  to  be  proved  as  an  essential  element 
of  the  crime,  the  prosecution  must  fail  if  it  is  not  proved.  On  the 
other  hand,  the  absence  of  mens  rea  reall}'  consists  in  an  honest  and 
reasonable  belief  entertained  by  the  accused  of  the  existence  of  facts 
which,  if  true,  would  make  the  act  charged  against  him  innocent.  The 
case  of  Sherras  v.  De  Rutzen,  [1895]  1  Q.  B.  918,  where  the  convic- 
tion of  a  publican  for  the  offence  of  selling  drink  to  a  constable  on 
duty  was  set  aside  b}-  the  court  because  the  accused  believed,  and  had 
reasonable  grounds  for  the  belief,  that  the  constable  was  not  on  dutj'  at 
the  time,  is  an  illustration  of  its  absence.  The  circumstances  of  tlie 
present  case  aie  far  from  indicating  that  there  was  no  mens  rea  on  the 
part  of  the  respondent.  He  must  be  presumed  to  have  known  the  pro- 
visions of  s.  7,  whether  he  was  actualh'  acquainted  with  its  terms  or 
not.  Then  he  knew  that  he  had  not  the  written  consent  of  the  mort- 
gagee; and  that  knowledge  was  sufficient  to  make  him  aware  that  he 
was  offending  against  the  provisions  of  the  Act,  or,  in  other  words, 
was  sufficient  to  constitute  what  is  known  in  law  as  me?is  rea.  If  the 
offence  of  which  the  offender  is  convicted  is  a  venial  one,  the  Act  puts 
it  within  the  discretion  of  the  judge  who  tries  the  case  to  award  a 
nominal  punishment.  At  the  end  of  the  defendants'  case  the  learned 
judge  ought  to  have  ruled  that,  there  being  no  written  consent,  there 
was  reasonable  and  probable  cause  for  making  the  charge  in  the  infor- 
mation, and  he  should  have  directed  the  jurj*  to  find  a  verdict  for  the 
defendants.  The  questions  which  were  submitted  to  the  jurv  were  un- 
necessar}',  and  ought  not  to  have  been  submitted.  Their  Lordships 
will  therefore  humblj-  advise  Her  Majest}-  to  discharge  the  order  of  the 
Supreme  Court,  and  to  order  the  rule  to  enter  a  verdict  for  the  defen- 
dants to  be  made  absolute  with  costs.  The  respondent  will  paj'  the 
costs  of  this  appeal. 


266  MYERS   V.    STATE.  [CHAP.  IV. 


MYERS   V.  STATE. 
Supreme  Court  of  Errors  of  Connecticut.    1816. 

[Reported  1  Connecticut,  502.] 

This  was  an  information,  brought  before  the  count}-  court,  on  the 
statute,^  for  suffering  and  allowing  A.  M.  and  others  to  travel  in  a 
hackne3--coach  owned  b}'  the  defendant,  from  New  Haven  to  Middle- 
town,  on  the  Sabbath-da}-.^ 

The  court  charged  the  jury  that  it  was  incumbent  on  the  defendant, 
if  he  justified  his  act  as  a  case  of  necessit}-  or  charity,  to  prove  by  evi- 
dence on  the  trial  that  a  case  of  necessity  or  charity  existed,  and  that 
the  representation  of  the  passenger  to  the  driver  did  not  in  law  amount 
to  a  justification,  unless  the  same  was  proved  to  have  been  true  when 
made. 

Swift,  C.  J.^  The  letting  of  a  carriage  on  Sunday,  on  the  ground  of 
necessity  or  charity,  is  not  prohibited  by  the  statute.  If  then  a  man 
acts  honestly  on  such  principle,  and  really  believes  that  the  case  of 
necessity  or  charity  exists,  he  is  not  criminal.  It  is  true,  a  man  may 
be  deceived  and  imposed  upon  by  falsehood  and  misrepresentation  ; 
yet  if  he  verily  believes  that  the  case  exists,  and  acts  on  that  ground, 
it  is  as  much  a  deed  of  charity  in  him,  if  the  fact  does  not  exist,  as  if 
it  does.  It  is  a  letting  of  the  carriage  as  a  matter  of  charity.  Unless 
this  construction  be  adopted,  a  man  may  be  convicted  of  a  crime  when 
he  had  no  intent  to  violate  the  law,  and  when  his  object  was  to  perform 
a  deed  of  charity  conformable  to  law.  This  would  oppugn  the  maxim 
that  a  criminal  intent  is  essential  to  constitute  a  crime. 

It  is  true,  on  this  construction,  attempts  may  be  made  to  evade  the 
statute  ;  but  in  all  cases  it  will  be  a  question  of  fact  to  the  jury  whether 
the  party  acted  under  a  serious  impression  of  the  truth  of  the  repre- 
sentation made  to  him.  If  there  be  any  appearance  of  collusion,  any 
management  to  elude  the  statute,  then  the  excuse  ought  not  to  avail ; 
and  by  the  exercise  of  a  proper  discretion  the  violation  of  this  law 
may  commonly  be  prevented.  But  on  a  diflferent  construction,  all 
works  of  charity  would  be  prevented.  If  a  man  is  bound  to  prove  not 
only  that  he  believed  it  to  be  an  act  of  charity,  but  that  the  facts  existed, 
otherwise  he  should  be  liable  to  be  punished,  there  would  be  very  great 
danger  in  performing  tlie  charity  which  the  statute  does  not  prohibit 

The  court,  then,  in  charging  the  jury  that  the  facts  constituting  the 
act  of  charity  must  be  proved  to  have  existed,  committed  an  error. 

1  Oct.  Sess.  1814,  c.  17.  "  No  proprietor  ...  of  any  coach  .  .  ,  sliall  suffer  or  allow 
any  person  or  persons  to  travel,  except  from  necessity  or  charity,  in  such  cairiage, 
within  this  state,  on  the  Sabbath  or  Lord's  day." 

2  The  statement  of  facts  has  been  abridged. 

8  The  concurring  opinion  of  Gould,  J. ,  is  omitted. 


SECT.  I.]  BIRNEY   V.    STATE,  2G7 

They  should  have  directed  the  jury,  if  they  found  that  the  defendant 
had  reasonable  ground  to  believe  from  the  representation  made  to  him 
that  the  case  of  charity  existed,  and  that  he  honestly  acted  under  the 
impression  of  that  belief,  they  ought  to  (ind  him  not  guilty. 

1  am  of  opinion  there  is  error  in  the  judgment  of  the  county  court.^ 


BIRNEY  V.  STATE. 
Supreme  Court  of  Ohio.     1837. 

[Reported  8  Ohio,  230.] 

Judge  Wood  ^  delivered  the  opinion  of  the  court. 

The  statute  upon  which  this  indictment  is  predicated  enacts  "that 
if  any  person  shall  harbor  or  secrete  any  black  or  mulatto  person,  the 
property  of  another,  the  person  so  offending  shall,  on  conviction  thereof, 
be  fined  any  sum  not  less  than  ten  nor  more  than  fifty  dollars."  We  are 
first  called  to  consider  whether,  under  this  enactment,  the  indictment 
is  sufficient. 

It  is  required  that  every  indictment  shall  have  a  precise  and  sufficient 
certainty.  The  omission  of  a  word  of  substance  is  fatal.  (2  Haw.  P.  C. 
chap.  25,  s.  4.)  Here  the  plaintiff'  in  error  is  charged  with  harboring 
and  secreting  a  certain  mulatto  girl  by  the  name  of  Matilda,  the  prop- 
erty of  L.  Larkin.  There  is  no  averment  that  the  plaintiff'  in  error  knew 
the  facts  alleged,  that  Matilda  was  a  slave  and  the  property  of  L.  Lar- 
kin, or  of  any  other  person  ;  and  such  is  not  the  legal  inference,  in  a 
state  whose  constitution  declares  that  all  are  born  free  and  equal,  and 
that  there  shall  be  neither  slavery  nor  involuntary  servitude  within  its 
limits,  except  as  a  punishment  for  the  commission  of  crimes.  On  the 
contrary,  the  presumption  is  in  favor  of  freedom.  The  scienter,  or 
knowledge  of  the  plaintiff'  in  error,  of  this  material  fact  was  an  ingredi- 
ent necessary  to  constitute  his  guilt.  This  knowledge  should  have  been 
averred  in  the  indictment,  and  proved  on  the  trial ;  for  without  such 
knowledge  the  act  charged  as  a  crime  was  innocent  in  its  character. 
We  know  of  no  case  where  positive  action  is  held  criminal,  unless  the 
intention  accompanies  the  act,  either  expressly  or  necessarily  inferred 
from  the  act  itself.  '• '■  Ignorantia  facti  doth  excuse,  for  such  an  igno- 
rance, many  times,  makes  the  act  itself  morally  involuntary."  1  Hale's 
P.  C.  42. 

It  is  true  that  the  statute  upon  which  the  indictment  is  founded 
omits  the  scienter,  and  the  indictment  covers  all  the  facts  enumerated 
in  that  statute.  But  this  is  not  sufficient;  it  cannot  be  assumed 
that  an   act  which,  independent   of  positive   enactment,  involves  no 

1  See  Bradley  v.  People,  8  Col.  599.  —  Ed 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


268  COMMONWEALTH    V.    MASH.  [CHAP.  IV. 

moral  wrong,  na}-,  an  act  that  in  man}'  oases  would  be  highly  praise- 
woith}-,  should  be  made  grievously  criminal,  when  performed  in  total 
unconsciousness  of  the  facts  that  infect  it  with  crime.  This  court  has 
determined  differently.  In  the  case  of  Anderson  against  the  State,  7 
Ohio  Rep.  part  1,  255,  the  plaintiff  in  error  was  indicted  for  uttering 
and  publishing  forged  certificate  of  deposit,  without  averring  his  knowl- 
edge of  such  forgery.  The  statute  under  which  the  indictment  was 
found  does  not,  in  express  terms,  make  this  knowledge  a  constituent 
of  the  crime.  Nevertheless,  the  court  held  that  the  criminality  could 
not  exist  without  the  knowledge,  and  that  an  indictment  that  did  not 
aver  it  was  defective.  That  case  runs  upon  all  fours  with  this,  and  the 
further  investigation  of  the  principles  upon  which  it  is  based  confirms 
the  court  in  the  conviction  that  it  is  correct.  Tliis  judgment  must  be 
reversed  for  this  cause,  and  it  thus  becomes  unnecessary  to  decide  upon 
the  other  points,  so  laboriously  argued  for  the  plaintiff  in  error,  and  of 
a  character  too  important  in  their  bearing  upon  the  whole  country,  to 
be  adjudicated  upon  without  necessity.^ 


COMMONWEALTH   v.  MASH. 
Supreme  Judicial  Court  of  Massachusetts.    1844. 

[Reported  7  Metcalf,  472.] 

The  defendant  was  indicted,  on  the  Rev.  Sts.  c.  130,  s.  2,  for  marry- 
ing a  second  husband  while  her  former  husband  was  living. 

At  the  trial  in  the  Municipal  Court,  at  August  term,  1843,  there  was 
evidence  tending  to  prove  that  the  defendant  was  married  to  Peter 
Mash  on  the  7th  of  December,  1834,  and  that  she  afterwards  cohabited 
with  him  until  about  the  10th  of  November,  1838,  when  he  left  home 
in  the  morning,  saying  he  should  return  to  breakfast,  and  was  not  after- 
wards heard  from  by  the  defendant  till  about  the  middle  of  May,  1842, 
when  he  returned;  that  on  the  10th  of  April,  1842,  she  was  married, 
in  Boston,  b}'  a  clergj'man  of  competent  authority  to  solemnize  mar- 
riages in  this  Commonwealth,  to  William  M.  Barrett,  with  whom  she 
cohabited  in  Boston  until  she  heard  that  said  Peter  Mash  was  still  liv- 
ing, when  she  immediately  withdrew  from  said  Barrett,  and  had  no 
intercourse  with  him  afterwards  ;  that  she  was  of  uniformly  good  char- 
acter and  virtuous  conduct,  and  that  she  honestly  believed,  at  the  time 
of  said  second  marriage,  that  said  Peter  Mash  was  dead ;  that  during 
his  absence,  as  aforesaid,  she  made  many  inquiries,  and  was  unable  to 
obtain  any  information  concerning  him,  or  to  ascertain  whether  he  was 
or  was  not  alive. 

1  See  U.  S.  V.  Beaty,  Hempst.  489 ;  Lee  v.  Lacey,  1  Cranch  C.  C.  263  ;  conf.  State 
tJ.  B.  &  S.  Steam  Co.  13  Md.  181.  —  Ed. 


SK(JT.I.]  COMMONWEALTH    V.    MASH.  269 

The  counsel  for  the  defendant  moved  the  court  to  instruct  the  jury 
that  if  they  beUeved  all  the  facts  which  the  aforesaid  evidence  tended 
to  prove,  she  was  entitled  to  an  acquittal.  But  the  court  refused  so  to 
instruct  the  jury,  and  instructed  theui  that  the  defendant's  ignorance 
that  her  said  husband,  Teter  Mash,  was  alive,  and  her  honest  belief 
that  he  was  dead,  constituted  no  legal  defence. 

The  jury  found  the  defendant  guilty,  and  she  filed  exceptions  to  the 
instruction  of  the  court. 

Hallett,  for  the  defendant. 

S.  D.  Parker,  for  the  Commonwealth. 

Shaw,  C.  J.  The  court  are  of  opinion  that  the  instruction  to  the  jury 
was  right.  The  rule  of  law  was  certainly  strongly  expressed  by  the 
judge,  no  doubt  in  consequence  of  the  terms  in  which  the  motion  of  the 
defendant's  counsel  was  expressed.  The  rule,  as  thus  laid  down,  in 
effect  was,  that  a  woman  whose  husband  suddenly  left  her  without 
notice,  and  saying,  when  he  went  out,  that  he  should  return  immediately, 
and  who  is  absent  between  three  and  four  years,  though  she  have  made 
inquiry  after  him,  and  is  ignorant  of  his  being  alive,  but  honestly  believes 
him  to  be  dead,  if  she  marries  again  is  guilty  of  polygamy.  The  cor- 
rectness of  this  instruction  must  of  course  depend  upon  the  construction 
of  the  Rev.  Sts.  c.  130,  which  regulate  this  subject.  The  second  section 
imposes  a  penalty  upon  any  person  who,  having  a  former  husband  or  wife, 
shall  marry  another  person  ;  with  some  exceptions.  The  third  section 
excepts  from  the  operation  of  the  statute  -'any  person  whose  husband 
or  wife  shall  have  been  continually  remaining  beyond  sea,  or  shall  have 
voluntarily  withdrawn  from  the  other,  and  remained  absent  for  the 
space  of  seven  years  together,  —  the  party  marrying  again  not  knowing 
the  other  to  be  living  within  that  time." 

It  appears  to  us  that  in  a  matter  of  this  importance,  so  essential  to 
the  peace  of  families  and  the  good  order  of  society,  it  was  not  the  inten- 
tion of  the  law  to  make  the  legality  of  a  second  marriage,  while  the 
former  husband  or  wife  is  in  fact  living,  depend  upon  ignorance  of  such 
absent  party's  being  alive,  or  even  upon  an  honest  belief  of  such  per- 
son's death.  Such  belief  might  arise  after  a  ver\'  short  absence.  But 
it  appears  to  us  that  the  legislature  intended  to  prescribe  a  more  exact 
rule,  and  to  declare,  as  law,  that  no  one  should  have  a  right,  ujion  such 
ignorance  that  the  other  party  is  alive,  or  even  upon  such  honest  belief 
of  his  death,  to  take  the  risk  of  marrying  again,  unless  such  belief  is 
confirmed  by  an  absence  of  seven  years,  with  ignorance  of  the  absent 
party's  being  alive  within  that  time.  It  is  analogous  to  other  provis- 
ions and  rules  of  law,  by  which  a  continued  absence  of  a  person  for 
seven  years,  without  being  heard  of,  will  constitute  a  presumption  of 
his  death.     Loring  v.  Steineman,  1  Met.  204  ;  Greenl.  on  Ev.  s.  41. 

We  are  strongly  confirmed  in  this  construction  of  the  statute,  and 
that  such  was  the  deliberate  expression  of  the  legislative  will,  by  refer- 
ence to  the  report  of  the  commissioners  for  revising  the  statutes.  It 
appears,  by  their  report  upon  this  provision,  that  they  prescribed  a  much 


270  COMMONWEALTH    V.    BOYNTON.  [CHAP.  IV. 

more  mitigated  rule,  and  proposed  to  extend  the  exception  "to  an\' 
person  whose  former  liusbaiul  oi-  wife,  having  been  absent  one  year  or 
more  at  the  time  of  such  second  marriage,  sliall  be  believed  to  be  dead." 
This  proposal  was  stricken  out  by  the  committee  appointed  to  consider 
the  report  of  the  commissioners,  and  the  legislature  adopted  their 
amendment,  and  passed  the  law  as  it  stands,  without  the  proposed 
additional  exception.  This  shows  at  least  that  the  attention  of  the 
legislature  was  called  to  the  subject,  and  that  it  was  by  design,  and  not 
through  inadvertence,  that  the  law  was  framed  as  it  is. 

It  was  urged  in  the  argument  that  where  there  is  no  criminal  intent, 
there  can  be  no  guilt;  and  if  the  former  husband  was  honestly  believed 
to  be  dead,  there  could  be  no  criminal  intent.  The  pro[)osition  stated 
is  undoubtedlv  correct  in  a  general  sense  ;  but  the  conclusion  drawn 
from  it  in  this  case  by  no  means  follows.  Whatever  one  voluntarily 
does,  he  of  course  intends  to  do.  If  the  statute  has  made  it  criminal 
to  do  an}'  act  under  particular  circumstances,  the  part}'  voluntarily  doing 
that  act  is  chargeable  with  the  criminal  intent  of  doing  it.  On  this 
subject  the  law  has  deemed  it  so  important  to  prohibit  the  crime  of 
poh'gamy,  and  found  it  so  difficult  to  prescribe  what  shall  be  sufficient 
evidence  of  the  death  of  an  absent  person  to  warrant  a  belief  of  the 
fact,  and  as  the  same  vague  evidence  might  create  a  belief  in  one  mind 
and  not  in  another,  the  law  has  also  deemed  it  wise  to  fix  a  definite 
period  of  seven  years'  continued  absence,  without  knowledge  of  the  con- 
trar}',  to  warrant  a  belief  that  the  absent  person  is  actually  dead.  One, 
therefore,  who  marries  within  that  time,  if  the  other  party  be  actually 
living,  whether  the  fact  is  believed  or  not,  is  chai'geable  with  that  crimi- 
nal intent,  b}-  purposely  doing  that  which  the  law  expressl}'  prohibits. 

Exceptions  overruled} 

[The  court  did  not  pass  sentence  on  the  defendant,  but  took  a  recog- 
nizance for  her  appearance  in  court  at  a  future  day.  On  the  9th  of  July, 
1844,  the  defendant  received  a  full  pardon  from  the  governor,  which 
she  brought  into  court  on  the  15th  of  said  July,  and  pleaded  the  same 
in  bar  of  sentence.     Whereupon  the  court  ordered  her  to  be  discharged.] 


COMMONWEALTH   v.   BOYNTON. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2  Allen,  160.] 

Indictment  against  the  defendant  for  being  a  common  seller  of 
intoxicating  liquor.  At  the  trial  in  the  Superior  Court,  after  certain 
sales  of  beer  had  been  testified  to,  the  defendant  offered  evidence  to 
prove  that  the  article  sold  was  not  intoxicating,  and  that,  if  it  were 

^  See,  contra,  Squire  v.  State,  46  Ind.  459.  —  Ed. 


SECT  I.]  COMMONWEALTH   V.    BOYNTON.  271 

SO,  he  had  no  reason  to  suppose  that  it  was  so,  and  bought  it  for  bee: 
which  was  not  intoxicating,  and  did  not  believe  it  to  be  intoxicating ; 
but  Brigham,  J.,  rejected  the  latter  part  of  the  evidence  offered,  and 
instructed  the  jury  that  if  the  defendant  sold  liquor  which  was  intoxi- 
cating, as  alleged,  he  might  be  found  guilty,  although  he  did  not  know 
or  suppose  that  it  was  so.  The  defendant  was  convicted,  and  alleged 
exceptions. 

J.  Q.  A.  Griffin  for  the  defendant. 

Foster,  Attorney-General,  for  the  Commonwealth. 

Hoar,  J.  The  court  are  of  opinion  that  the  sale  of  intoxicating 
liquors  in  violation  of  the  statute  prohibition  is  not  one  of  those  cases 
in  which  it  is  necessary  to  allege  or  prove  that  the  person  charged 
with  the  offence  knew  the  illegal  character  of  his  act ;  or  in  which  a 
want  of  such  knowledge  would  avail  him  in  defence.  If  the  defendant 
purposely  sold  the  liquor,  which  was  in  fact  intoxicating,  he  was  bound 
at  his  peril  to  ascertain  the  nature  of  the  article  wliich  he  sold.  Where 
the  act  is  expressh'  prohibited,  without  reference  to  the  intent  or  pur- 
pose, and  the  party  committing  it  was  under  no  obligation  to  act  in 
the  premises,  unless  he  knew  that  he  could  do  so  lawfull}',  if  he  violates 
the  law  he  incurs  the  penaltv.  The  salutary  rule  that  every  man  is 
conclusiveh'  presumed  to  know  the  law  is  sometimes  productive  of 
hardship  in  particular  cases.  And  the  hardship  is  no  greater  where 
the  law  imposes  the  duty  to  ascertain  a  fact. 

It  could  hardly  be  doubted  that  it  would  constitute  no  defence  to  an 
indictment  for  obstructing  a  highway,  if  the  defendant  could  show 
that  he  mistook  the  boundaries  of  the  way,  and  honestl}'  supposed 
that  he  was  placing  the  obstruction  upon  his  own  land.  The  same 
principle  was  applied  in  the  case  of  bigam}',  Commonwealth  v.  Mash, 
7  Met.  472  ;  and  in  the  case  of  adultery,  Commonwealth  v.  El  well,  2 
Met.  190. 

Exceptions  overruled.  ^ 

1  See  ace.  Com.  v.  Farren,  9  All.  489  ;  State  v.  Smith,  10  R.  I.  2.58  (selling  adul- 
terated milk);  State  v.  Stanton,  37  Conn.  421  (selling  adulterated  liquor). 

Contra,  Teague  v.  State,  25  Tex.  App.  577  (selling  diseased  meat). 

On  the  same  principle  it  has  been  held  that  one  is  guilty  (under  a  statute  forbid- 
ding it)  for  allowing  a  minor  to  remain  in  his  billiard  saloon,  though  he  did  not  know 
that  tlie  youth  was  a  minor.  State  v.  Probasco,  62  la.  400.  (See,  contra,  Marshall  i'. 
State,  49  Ala.  21 ;  Stern  v.  State,  53  Ga.  229.)  The  same  decision  has  been  reached 
in  a  prosecution  upon  a  statute  forbidding  the  sale  of  intoxicating  liquor  to  a  minor. 
McCutcheon  v.  People,  69  111.  601  ;  Ulrich  v.  Com.,  6  Bush,  400  ;  In  re  Carlson's 
License,  127  Pa.  330  ;  State  v.  Hartfiel,  24  Wis.  60.  (See,  contra,  Mulreed  v.  State, 
107  Ind.  62.)  So  in  the  case  of  a  sale  to  a  common  drunkard.  Barnes  v.  State,  19 
Conn.  398.     (See,  contra,  Williams  v.  State,  48  Ind.  306). 

On  the  same  ground  one  is  held  guilty  under  a  statute  forbidding  the  sale  of  oleo- 
margarine, though  he  sold  oleomargarine  in  ignorance  of  its  real  nature.  State  v, 
Newton,  50  N.  J.  534  ;  Com.  v.    Weiss,  139  Pa.  247. 

See  also  U.  S.  v.  Leathers,  6  Sawy.  17;  People  v.  Harris,  29  Cal.  678  ;  State  * 
Welch,  21  Minn.  22.  —  Ed. 


272         STATE    V.    CHICAGO,    MILWAUKEE    &    ST.    PAUL    RY.       [CHAP.  IV. 


STATE  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL  RAILWAY. 

Supreme  Court  of  Iowa.     1903. 

[Reported  122  la.  22.] 

Ladd,  J.^  The  defendant  admitted  the  failure  of  its  train  to  stop 
within  800  feet  and  more  than  200  feet  from  the  crossing,  and  inter- 
posed the  defence  that  the  engineer  in  charge  did  all  he  could  to  stop 
it,  but  that,  owing  to  the  brakes  not  working  in  the  usual  manner,  the 
momentum  of  the  train  carried  it  over  the  crossing.  The  court  sub- 
mitted the  case  to  the  jur}'  on  the  theory  that  the  burden  of  proof  was 
on  the  defendant,  in  order  to  exonerate  itself  from  liabilit}',  to  show 
b}'  a  preponderance  of  evidence  that  the  failure  to  stop  was  not  due  to 
an}'  negligence  on  the  part  of  its  employees  in  operating  the  train,  or 
of  the  company  in  not  having  proper  appliances,  or  in  keeping  those 
had  in  proper  condition,  and  that  the  company  might  be  liable  even 
though  tlie  engineer  was  not.  Possibly  that  should  have  been  the  law, 
but  it  was  not  so  written  b}-  the  legislature.  The  statute  in  question 
reads:  "  All  trains  run  upon  anj-  railroad  in  this  state  which  intersects 
or  crosses  any  other  railroad  on  the  same  level  shall  be  brought  to  a 
full  stop  at  a  distance  of  not  less  than  two  hundred  and  not  more  than 
eight  hundred  feet  from  the  point  of  intersection  or  crossing,  before 
such  intersection  or  crossing  is  passed,  except  as  otherwise  provided  in 
this  chapter.  An}'  engineer  violating  the  provisions  of  this  section 
shall  forfeit  one  hundred  dollars  for  each  offence,  to  be  recovered  in  an 
action  in  the  name  of  the  State  for  the  benefit  of  the  school  fund,  and 
the  corporation  on  whose  road  the  offence  is  committed  shall  forfeit  the 
sum  of  two  hundred  dollars  for  each  offence,  to  be  recovered  in  like 
manner."  Section  2073,  Code.  The  latter  part  of  the  statute  is  pureh' 
penal  in  character,  with  the  evident  object  of  punishing  the  offender, 
rather  than  afford  a  remedy  for  the  wrongful  act.  In  this  respect  it 
differs  radically  from  provisions  awarding  damages  flowing  from  cer- 
tain acts,  such  as  the  setting  out  of  fire.  Its  meaning,  then,  cannot  be 
extended  beyond  the  terras  employed.  But  one  offence  is  denounced 
by  it,  and  that  is  the  omission  of  the  engineer  to  stop  the  train  as 
required.  The  first  sentence  commands  what  shall  be  done  —  defines 
a  duty  ;  the  first  clause  of  the  second  sentence  imposes  a  penalty  on 
any  engineer  for  "each  offence"  of  omitting  such  duty;  the  second 
clause  of  the  second  sentence  adds  a  penalty  against  the  corporation 
"on  whose  road  such  offence  is  committed."  To  what  do  these  last 
words  refer?     Manifestly,  to  the  offence  of  which  the  engineer  is  guilty. 

1  Part  of  the  opinion  only  is  given. — Ed. 


SECT.  I.J  STATE  V.  CHICAGO,  MILWAUKEE  &  ST.  PAUL  EY.  273 

No  other  is  mentioned  in  the  section.  The  statute  cannot  be  fairlv  read 
otherwise.  The  thought  seems  to  have  been  that,  as  the  engineer  con- 
trols the  train,  the  fault  in  failing  to  stop  as  required  is  primarily  his, 
and  secondarik  that  of  the  company-  for  which  he  acts.  There  is  no 
ground  for  holding  that  the  company  may  be  liable  independent  of  any 
fault  of  tlie  engineer.  The  forfeiture  of  the  corporation  is  made  to 
depend  upon  his  guilt  of  the  offence  defined,  and  upon  that  only. 

As  the  statute  is  purely  penal  in  character,  it  ought  not  to  be 
construed  as  fixing  an  absolute  liability.  A  failure  to  stop  may  some- 
times occur,  notwithstanding  the  utmost  efforts  of  the  engineer.  In 
such  even  this  omission  cannot  be  regarded  as  unlawful.  The  law 
never  designs  the  infliction  of  punishment  where  there  is  no  wrong. 
The  necessity  of  intent  of  purpose  is  always  to  be  implied  in  such 
statutes.  An  actual  and  conscious  infraction  of  duty  is  contemplated. 
The  maxim,  "  Actus  non  facit  reum  nisi  mens  sit  rea"  obtains  in  all 
penal  statutes  unless  excluded  by  their  language.  See  Regina  v. 
Tolson,  23  Q.  B.  Div.  168,  where  it  was  said,  "  Crime  is  not  com- 
mitted where  the  mind  of  the  person  committing  the  act  is  innocent." 
See,  also,  Sutherland  on  Statutory  Construction,  section  354  et  seq. 
No  doubt  many  statutes  impose  a  penalty  regardless  of  the  intention 
of  those  who  violate  them,  but  these  ordinarily  relate  to  matters  which 
may  be  known  definitely  in  advance.  In  such  cases  commission  of  the 
offence  is  due  to  neglect  or  inadvertence.  But  even  then  it  can  hardly 
be  supposed  the  offender  would  be  held  if  the  act  were  committed  when 
in  a  state  of  somnambulism  or  insanit}-.  As  it  is  to  be  assumed  in  the 
exercise  of  the  proper  care  that  the  engineer  has  control  of  his  train  at 
all  times,  proof  of  the  mere  failure  to  stop  makes  out  a  i^nma  facie 
case.  But  this  was  open  to  explanation,  and  if,  from  that  given,  it 
was  made  to  appear  that  he  made  proper  preparation,  and  intended 
to  stop,  and  put  forth  every  reasonable  effort  to  do  so,  he  should  be 
exonerated.     See  Furley  v.  Ry.  Co.,  90  Iowa,  146. 


274  EEGINA   V.  SHARPE.  [CHAP.  IV. 


SECTION  II. 

The  mens  rea  :  Intent. 

REGINA   V.    SHARPE. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  214.] 

The  defendant  was  tried  at  Hertford,  before  Erie,  J.,  who  reserved 
the  following  case  :  — 

The  indictment  in  the  first  count  charged  that  the  defendant,  a 
certain  burial-ground  belonging  to  a  certain  meeting-house  of  a  con- 
gregation of  Protestants  dissenting  from  the  Church  of  England, 
unlawfully  did  break  and  enter,  and  a  certain  grave  there,  in  which 
the  body  of  one  Louisa  vSharpe,  had  before  then  been  interred,  with 
force  and  arms,  unlawfully,  wilfully,  and  indecently  did  dig  open, 
and  the  said  body  of  the  said  Louisa  Sharpe  out  of  the  said  grave, 
unlawfully,  wilfully,  and  indecently  did  take  and  carry  away. 

And  there  were  other  counts,  varying  the  charge,  which  may  be 
resorted  to  if  necessary.  The  evidence  was,  that  the  defendant's 
family  had  belonged  to  a  congregation  of  dissenters  at  Hitchin,  and 
his  mother,  with  some  other  of  his  relations,  had  been  buried  in  one 
grave  in  the  burying-ground  of  that  congregation  there,  with  the  con- 
sent of  those  who  were  interested.  That  the  father  of  the  defendant 
had  recently  died.  That  the  defendant  prevailed  on  the  wife  of  the 
person  to  whom  the  key  of  the  burying-ground  was  intrusted  to  allow 
him  to  cause  the  grave  above  mentioned  to  be  opened,  under  the  pre- 
text that  he  wished  to  bury  his  father  in  the  same  grave,  and,  in  order 
thereto,  to  examine  whether  the  size  of  the  grave  would  admit  his 
father's  coflln.  That  lie  caused  the  coffins  of  his  stepmother  and  two 
children  to  be  taken  out,  and  so  came  to  the  coffin  of  his  mother, 
which  was  under  them,  and  was  much  decomposed,  and  that  he 
caused  the  remains  of  this  coffin,  with  the  corpse  therein,  to  be  placed 
is  no  authority  for  saying  tliat  relationship  can  justify  the  taking  of  a 
corpse  from  the  grave  where  it  bad  been  laid.  We  have  been  unwill- 
ing to  affirm  the  conviction  on  account  of  our  respect  for  the  motives 
of  the  defendant ;  but  we  have  felt  it  our  duty  to  do  so  rather  than 
•lay  down  a  rule  which  might  lessen  the  only  protection  the  law  affords 
in  respect  of  the  burials  of  dissenters.  Tiie  result  is,  the  conviction 
will  stand,  and,  as  the  judge  states,  the  sentence  should  be  a  nominal 
fine  of  one  shilling.  Conviction  affirmed.^ 

'  See  Rex  v.  Ogden,  6  C.  &  P.  631.  —  Ed. 


SECT.  II.]  EEGINA   V.    PKINCE.  2f5 


REGINA  V.  PRINCE. 

Court  for  Crown  Cases  Reserved.     1875. 

[Reported  L.  R.  2  C.  C.  154.] 

Case  stated  bj'  Denman,  J. 

At  the  assizes  for  Surrey,  held  at  Kingston-upon-Thames,  on  the 
24th  of  March  last,  Henr\'  Prince  was  tried  upon  the  charge  of  having 
unlawfully  taken  one  Annie  Phillips,  an  unmarried  girl,  being  under 
the  age  of  sixteen  years,  out  of  the  possession  and  against  the  will  of 
her  father.  The  indictment  was  framed  under  s.  55  of  24  &  25  Vict, 
c.  100. 

He  was  found  guilty. 

All  the  facts  necessary  to  support  a  conviction  existed,  unless  the 
following  facts  constituted  a  defence.  The  girl  Annie  Phillips,  though 
proved  by  her  father  to  be  fourteen  years  old  on  the  6th  of  April  fol- 
lowing, looked  very  much  older  than  sixteen,  and  the  jury  found  upon 
reasonable  evidence  that  before  the  defendant  took  her  away  she  had 
told  him  that  she  was  eighteen,  and  that  the  defendant  bo7ia  Jide 
believed  that  statement,  and  that  such  belief  was  reasonable. 

If  the  Court  should  be  of  opinion  that  under  these  circumstances  a 
conviction  was  right,  the  defendant  was  to  appear  for  judgment  at  the 
next  assizes  for  Surrey  ;  otherwise  the  conviction  was  to  be  quashed  : 
see  Reg.  v.  Robins,  C.  &  K.  546,  and  Reg.  v.  Olifler,  10  Cox,  Cr.  C. 
402. 

Brett,  J.^  ...  It  would  seem  that  there  must  be  proof  to  satisfy  a 
jury  ultimately  that  there  was  a  criminal  mind,  or  mens  rea,  in  every 
offence  reallj'  charged  as  a  crime.  In  some  enactments,  or  common 
law  maxims  of  crime,  and  therefore  in  the  indictments  charging  the 
committal  of  those  crimes,  the  name  of  the  crime  imports  that  a  mens 
rea  must  be  proved,  as  in  murder,  burglary,  etc.  In  some  the  mens  rea 
is  contained  in  the  specific  enactments  as  to  the  intent  which  is  made  a 
part  of  tlie  crime.  In  some  the  word  "feloniously"  is  used,  and  in 
such  cases  it  has  never  been  doubted  but  that  a  felonious  mind  must 
ultimately  be  found  b}-  the  jur}'.  In  enactments  in  a  similar  form,  but 
in  which  the  prohibited  acts  are  to  be  classed  as  a  misdemeanor,  the 
word  "•  unlawfully  "  is  used  instead  of  the  word  "  feloniously."  What 
reason  is  there  wh}',  in  like  manner,  a  criminal  mind,  or  uteris  rea,  must 
not  ultimately  be  found  b}-  the  jurj-  in  order  to  justify  a  conviction,  the 
distinction  always  being  observed,  that  in  some  cases  the  proof  of  the 
committal  of  the  acts  ma}^  prhna  facie,  either  by  reason  of  their  own 
nature,  or  by  reason  of  the  form  of  the  statute,  import  the  proof  of 
the  lyiens  rea  ?  But  even  in  those  cases  it  is  open  to  the  prisoner  to 
rebut  the  prima  facie  evidence,  so  that  if,  in  the  end,  the  jury  are 
satisfied  that  there  was  no  criminal  mind,  or  mens  rea,  there  cannot  be 

1  Part  of  this  dissenting  opinion  is  omitted.  —  Ed. 


276  EEGINA   V.    PRINCE.  [CHAP.  IV. 

a  conviction  in  England  for  that  which  is  b}-  the  law  considered  to  be  a 
crime. 

There  are  enactments  which  by  their  form  seem  to  constitute  the  pro- 
hibited acts  into  crimes,  and  yet  b}'  virtue  of  which  enactments  the 
defendants  charged  with  the  committal  of  the  prohibited  acts  have  been 
convicted  in  the  absence  of  the  knowledge  or  intention  supposed  neces- 
sar}'  to  constitute  a  mens  rea.  Such  are  the  cases  of  trespass  in  pursuit 
of  game,  or  of  piracy  of  literarj^  or  dramatic  works,  or  of  the  statutes 
passed  to  protect  the  revenue.  But  the  decisions  have  been  based  upon 
the  judicial  declaration  that  the  enactments  do  not  constitute  the  pro- 
hibited acts  into  crime,  or  offences  against  the  Crown,  but  onlj-  prohibit 
them  for  the  purpose  of  protecting  the  individual  interest  of  individual 
persons,  or  of  the  revenue.  Thus,  in  Lee  v.  Simpson,  3  C.  B.  871  ;  15 
L.  J.  (C.  P.)  105,  in  an  action  for  penalties  for  the  representation  of  a 
dramatic  piece,  it  was  held  that  it  was  not  necessary  to  shew  that  the  de- 
fendant knowingly  invaded  the  plaintiff's  right.  But  the  reason  of  the 
decision  given  by  Wilde,  C.  J.,  3  C.  B.  at  p.  883,  is  :  "The  object  of 
the  legislature  was  to  protect  authors  against  the  piratical  invasion 
of  their  rights.  In  the  sense  of  having  committed  an  offence  against 
the  Act,  of  having  done  a  thing  that  is  prohibited,  the  defenciant  is  an 
offender.  But  the  plaintiff's  rights  do  not  depend  upon  the  innocence 
or  guilt  of  the  defendant."  So  the  decision  in  Morden  v.  Porter,  7  C. 
B.  (N.  S.)  631  ;  29  L.  J.  (M.  C.)  218,  seems  to  be  made  to  turn  upon 
the  view  that  the  statute  was  passed  in  order  to  protect  the  individual 
property  of  the  landlord  in  game  reserved  to  him  bv  his  lease  against 
that  which  is  made  a  statutory  trespass  against  him,  although  his  land 
is  in  the  occupation  of  his  tenant.  There  are  other  cases  in  which  the 
ground  of  decision  is  that  specific  evidence  of  knowledge  or  intention 
need  not  be  given,  because  the  nature  of  the  prohibited  acts  is  such  that, 
if  done,  they  must  draw  with  them  the  inference  that  the}'  were  done 
with  the  criminal  mind  or  intent  which  is  a  part  of  every  crime.  Such 
is  the  case  of  the  possession  and  distribution  of  obscene  books.  If  a 
man  possesses  them,  and  distributes  them,  it  is  a  necessary  inference 
that  he  must  have  intended  that  their  first  effect  must  be  that  which  is 
prohibited  by  statute,  and  that  he  cannot  protect  himself  by  shewing 
that  his  ultimate  object  or  secoudar}'  intent  was  not  immoral :  Reg.  v. 
Hicklin,  Law  Rep.  3  Q.  B.  360.  This  and  similar  decisions  go  rather 
to  ahew  what  is  mens  rea,  tlian  to  shew  whether  there  can  or  cannot  be 
conviction  for  crime  proper  without  me7is  rea. 

As  to  the  last  question,  it  has  become  ver}'  necessar}'  to  examine  the 
authorities.  In  Blackstone's  Commentaries,  by  Stephen,  2d  ed.,  vol. 
iv.,  Book  G,  Of  Ci'imes,  p.  98.  "  And  as  a  vicious  will  without  a  vicious 
act  is  no  civil  crime,  so,  on  the  other  hand,  an  unwarrantable  act 
without  a  vicious  will  is  no  crime  at  all.  So  that,  to  constitute  a  crime 
against  human  laws,  there  must  be  first  a  vicious  will,  and  secondly  an 
unlawful  act  consequent  upon  such  vicious  will.  Now  there  are  three 
cases  in  which  the  will  does  not  join  with  the  act :  1.    Where  there  is  a 


SECT.  II.]  REGINA   V.    PllINCE.  277 

defect  of  understanding,  etc.;  2.  Wliere  there  is  understanding  and 
will  sufficient  residing  in  the  party,  but  not  called  forth  and  exerted  at 
the  time  of  the  action  done,  which  is  the  case  of  all  offences  committed 
by  chance  or  ignorance.  Here  the  will  sits  neuter,  and  neither  concurs 
with  the  act  nor  disagrees  to  it."  And  at  p.  105  :  "  Ignorance  or  mis- 
take is  another  defect  of  will,  when  a  man,  intending  to  do  a  lawful  act, 
does  that  which  is  unlawful;  for  here,  the  deed  and  the  will  acting 
separately,  there  is  not  that  conjunction  between  them  which  is  neces- 
sar}-  to  form  a  criminal  act.  But  this  must  be  an  ignorance  or  mistake 
in  fact,  and  not  an  error  in  point  of  law.  As  if  a  man,  intending  to 
kill  a  thief  or  housebreaker  in  his  own  house,  bj'  mistake  kills  one  of 
his  famil}',  this  is  no  criminal  action;  but  if  a  man  thinks  he  has  a  right 
to  kill  a  person  excommunicated  or  outlawed  wherever  he  meets  him, 
and  does  so,  this  is  wilful  murder."  In  Fowler  v.  Padget,  7  T.  R.  509, 
the  jury  found  that  the}'  thought  the  intent  of  the  plaintiff  in  going  to 
London  was  laudable  ;  that  he  had  no  intent  to  defraud  or  delay  his 
creditors,  but  that  dela}'  did  actually  happen  to  some  creditors.  Lord 
Kenyon  sa,id :  "  Bankruptc}'  is  considered  as  a  crime,  and  the  bankrupt 
in  the  old  laws  is  called  an  offender ;  but  it  is  a  principle  of  natural 
justice  and  of  our  laws  that  actus  noii  fadt  remn  nisi  mens  sit  rea. 
The  intent  and  the  act  must  both  concur  to  constitute  the  crime." 
And  again  :  "•  I  would  adopt  an}-  construction  of  the  statute  that  the 
words  will  bear,  in  order  to  avoid  such  monstrous  consequences  as 
would  manifestly  ensue  from  the  construction  contended  for." 

In  Hearne  v.  Garton,  2  E.  &  E.  16  ;  28  L.  J.  (M.  C.)  216,  the  respond- 
ents were  charged  upon  an  information  for  having  sent  oil  of  vitriol  by 
the  Great  Western  Railway  without  marking  or  stating  the  nature  of 
the  goods.  B}'  20  &  21  Vict.  c.  43,  s.  168,  "  every  person  who  shall 
send  or  cause  to  be  sent  by  the  said  railway  any  oil  of  vitriol,  shall  dis- 
tinctl}-  mark  or  state  the  nature  of  such  goods,  etc.,  on  pain  of  forfeit- 
ing, etc."  By  s.  206  such  penalt}'  is  recoverable  in  a  summary  wa}' 
before  justices,  with  power  to  imprison,  etc.  The  respondents  had  in 
fact  sent  oil  of  vitriol  unmarked.  But  the  justices  found  that  there  was 
no  guilty  knowledge,  but,  on  the  contrary,  the  respondents  acted  under 
the  full  belief  that  the  goods  were  correcth-  described,  and  had  pre- 
viously used  all  proper  diligence  to  inform  themselves  of  the  fact. 
They  refused  to  convict.  It  must  be  observed  that  in  that  case,  as  in 
the  present,  the  respondents  did  in  fact  the  prohibited  acts,  and  that 
in  that  case  as  in  this,  it  was  found,  as  the  ultimate  proof,  that  they 
were  deceived  into  the  belief  of  a  different  and  non-criminal  state  of 
facts,  and  had  used  all  proper  diligence.  The  case  is  stronger,  per- 
haps, than  the  present  by  reason  of  the  word  "unlawfully"  being 
absent  from  that  statute.  The  Court  upheld  the  decision  of  the  magis- 
trates, holding  that  the  statute  made  the  doing  of  the  prohibited  acts  a 
crime,  and  therefore  that  there  must  be  a  criminal  mind,  whicli  there 
was  not.  "As  to  the  latter  reason  I  think  the  justices  were  [»erfectly 
right:  actus  non  facit  reum  nisi  mens  sit  rea.     The  act  with  which  the 


278  BEGINA    V.    PRINCE.  [CHAP.  IV. 

respondents  were  ohargerl  is  an  offence  created  by  statute,  and  for 
which  the  person  committing  it  is  liable  to  a  penalty  or  to  imprison- 
ment;  not  only  was  there  no  proof  of  guilty  knowledge  on  the  part  of 
the  respondents,  but  the  presumption  of  a  guilty  knowledge  on  their  part, 
if  any  could  be  raised,  was  rebutted  by  the  proof  that  a  fraud  had  been 
practised  on  them.  I  am  inclined  to  think  they  were  civilly  liable  : " 
Lord  Campbell,  C.  J.  '•'•I  was  inclined  to  think  at  first,  tiiat  the  pro- 
vision was  merely  protective  ;  but  if  it  create  a  criminal  offence,  which 
I  am  not  prepared  to  den}',  then  the  mere  sending  by  the  respondents, 
without  a  guilt}-  knowledge  on  their  part,  would  not  render  them  crimi- 
nally liable,  altliough,  as  they  took  Nicholas's  word  for  the  contents  of 
the  parcel,  they  would  be  civilly  liable  :  "  Erle,  J. 

In  Taylor  ??rNewman,  4  B.  &  S.  89  ;  32  L.J.  (M.  C.)  186,  the  infor- 
mation was  under  24  &  25  Vict.  c.  96,  s.  23:  "Whosoever  shall  un- 
lawfully and  wilfully  kill,  etc.,  any  pigeon,  etc."  The  appellant  shot 
pigeons  on  his  farm  belonging  to  a  neighbor.  The  justices  convicted 
on  the  ground  that  the  appellant  was  not  justified  by  law  in  killing  the 
pigeons,  and,  therefore,  that  the  killing  was  unlawful.  In  other  words 
they  held  that  the  only  meaning  of  "unlawfully"  in  the  statute  was 
"  without  legal  justification."  The  Court  set  aside  the  conviction. 
"I  think  that  the  statute  was  not  intended  to  apply  to  a  case  in  which 
there  was  no  guilty  mind,  and  where  the  act  was  done  by  a  person 
under  the  honest  belief  that  he  was  exercising  a  right."    Mellor,  J. 

In  Buckmaster  v.  Reynolds,  13  C.  B.  (N.  S.)  62,  an  information  was 
laid  for  unlawfully,  by  a  certain  contrivance,  attempting  to  obstruct  or 
prevent  the  purposes  of  an  election  at  a  vestry.  The  evidence  was 
tiiat  the  defendant  did  obstruct  the  election  because  he  forced  himself 
and  others  into  the  room  before  eight  o'clock,  believing  that  eight  o'clock 
was  passed.  The  question  asked  was,  whether  an  intentional  obstruc- 
tion by  actual  violence  is  an  offence,  etc.  This  question  the  Court 
answered  in  the  affirmative,  so  that  there,  as  here,  the  defendant  had 
done  the  prohibited  acts.  But  Erle,  J.,  continued  :  "  I  accompany  this 
statement  (i.  e.  the  answer  to  the  question)  by  a  statement  that  upon 
the  facts  set  forth  I  am  unable  to  see  that  the  magistrate  has  come  to 
a  wrong  conclusion.  A  man  cannot  be  said  to  be  guilty  of  a  delict 
unless  to  some  extent  his  mind  goes  with  the  act.  Here  it  seems  that 
the  respondent  acted  in  the  belief  that  he  hud  a  right  t<j  enter  the  room, 
and  that  he  had  no  intention  to  do  a  wrongful  act." 

In  Reg.  V.  Hibbert,  Law  Rep.  1  C.  C.  184,  the  prisoner  was  indicted 
under  the  section  now  in  question.  The  girl,  who  lived  with  her  father 
and  mother,  left  her  home  in  company  with  another  girl  to  go  to  a 
Sunday  school.  The  prisoner  met  the  two  girls  and  induced  them  to 
go  to  Manchester.  At  Manchester  he  took  them  to  a  public  house  and 
tiiere  seduced  the  gii'l  in  question,  who  was  under  sixteen.  The  prisoner 
made  no  inquiry  and  did  not  know  who  the  girl  was,  or  whether  she 
had  a  father  or  mother  living  or  not,  but  he  had  no  reason  to,  and  did 
not  believe  that  she  was  a  girl  of  the  town.     The  jury  found  the  prisoner 


SECT.  II.]  REGINA   V.   PRINCE.  279 

guilty,  and  Lush,  J.,  reserved  the  case.  In  the  Court  of  Criminal 
Appeal,  BoviLLi.,  C.  J.jChannell  and  Pigott,  BB.,  Byles  and  Lusii,  JJ., 
quashed  the  conviction.  Bovill,  C.  J. :  "  In  the  present  case  there  is 
no  statement  of  an}-  finding  of  fact  that  the  prisoner  knew,  or  had 
reason  to  believe  that  the  girl  was  under  the  lawful  care  or  charge  of 
her  father  or  mother,  or  any  other  person.  In  the  absence  of  any  find- 
ing of  fact  on  this  point  tlie  conviction  cannot  be  supported."  Tliis 
case  was  founded  on  Reg.  v.  Green,  3  F.  &  F.  274,  before  Martin,  B. 
Tlie  girl  was  under  fourteen,  and  lived  with  her  father,  a  fisherman,  at 
Southend.  The  prisoners  saw  her  in  the  street  by  herself  and  induced 
her  to  go  with  tliem.  They  took  her  to  a  lonely  house,  and  tliere  Green 
had  criminal  intercourse  with  her.  Martin,  B.,  directed  an  acquittal : 
"  There  must,  he  said,  be  a  taking  out  of  the  possession  of  the  father. 
Here  the  prisoners  picked  up  the  girl  in  the  street,  and  for  anything 
that  appeared,  they  might  not  have  known  that  the  girl  had  a  father. 
The  girl  was  not  taken  out  of  the  possession  of  an}'  one.  The  prison- 
ers, no  doubt,  had  done  a  very  immoral  act,  but  the  question  was  wliether 
they  had  committed  an  illegal  act.  The  criminal  law  ought  not  to  be 
strained  to  meet  a  case  which  did  not  come  within  it.  The  act  of  the 
prisoners  was  scandalous,  but  it  was  not  an}-  legal  offence." 

In  each  of  these  cases  the  girl  was  surely  in  the  legal  possession  of 
her  father.  The  fact  of  her  being  in  the  street  at  the  time  could  not 
possibly  prevent  her  from  being  in  the  legal  possession  of  her  father. 
Everything,  therefore,  prohibited  was  done  by  the  prisoner  in  fact.  But 
in  each  case  the  ignorance  of  facts  was  held  to  prevent  the  case  frooi 
being  the  crime  to  be  punished. 

In  Reg.  V.  Tinckler,  1  F.  &  F.  513,  in  a  case  under  this  section, 
CoCKBURN,  C.  J.,  charged  the  jur}-  thus:  "  It  was  clear  the  prisoner 
had  no  right  to  act  as  he  had  done  in  taking  the  child  out  of  Mrs. 
Barnes's  custody.  But  inasmuch  as  no  improper  motive  was  suggested 
on  the  part  of  the  prosecution,  it  might  very  well  be  concluded  that  the 
prisoner  wished  the  child  to  live  with  him,  and  that  he  meant  to  dis- 
charge the  promise  which  he  alleged  he  had  made  to  her  father,  and 
that  he  did  not  suppose  he  was  breaking  the  law  when  he  took  the  child 
awa}'.  This  being  a  criminal  prosecution,  if  the  jury  should  take  this 
view  of  the  case,  and  be  of  opinion  that  the  prisoner  honestly  believed 
that  he  had  a  right  to  the  custody  of  the  child,  then,  although  the  prisoner 
was  not  legally  justified,  he  would  be  entitled  to  an  acquittal."  The 
jury  found  the  prisoner  not  guilty. 

In  Reg.  V.  Sleep,  8  Cox,  Cr.  C.  472,  the  prisoner  had  possession  of 
government  stores,  some  of  which  were  marked  with  tlie  broad  arrow. 
The  jury,  in  answer  to  the  question  whether  the  prisoner  knew  that  the 
copper,  or  any  part  of  it  was  marked,  answered,  "  We  have  not  suffi- 
cient evidence  before  us  to  shew  that  he  knew  it."  The  Court  of 
Criminal  Appeal  held  that  the  prisoner  could  not  be  convicted.  Cock- 
burn,  C.  J. :  Actus  non  facit  ream  nisi  ynens  sit  rea  is  the  foundation 
of  all  criminal  procedure.     The  ordinary  principle  that  there  must  be  a 


280  REGINA    V.    PRINCE.  [CHAP.  IV. 

guilty  mind  to  constitute  a  guilty  act  applies  to  this  ease,  and  must  be 
imported  into  this  statute,  as  it  was  held  in  Reg.  v.  Cohen,  8  Cox,  Cr. 
C.  41,  where  this  conclusion  of  the  law  was  stated  by  Hill,  J.,  with  his 
usual  clearness  and  power.  It  is  true  that  the  statute  sa^s  nothing 
about  knowledge,  but  this  must  be  imported  into  the  statute."  Pol- 
lock, C.  B.,  Martin,  B.,  Crompton  and  Willes,  JJ.  ,  agreed. 

In  the  cases  of  Reg.  /'.  Robins,  1  C.  &  K.  456,  and  Reg.  v.  Olifier,  10 
Cox,  Cr.  C.  402,  there  was  hardly  such  evidence  as  was  given  in  this 
case,  as  to  the  prisoner  being  deceived  as  to  the  age  of  the  girl,  and 
having  reasonable  grounds  to  believe  the  deception,  and  there  cer- 
tainly were  no  findings  by  the  jury  equivalent  to  the  findings  in  this 
case. 

In  Reg.  V.  Forbes  and  Webb,  10  Cox,  Cr.  C.  362,  although  the 
policeman  was  in  plain  clothes,  the  prisoners  certainly  had  strong 
ground  to  suspect,  if  not  to  believe,  that  he  was  a  policeman  ;  for  the 
case  states  that  they  repeatedly  called  out  to  rescue  the  boy  and  pitch 
into  the  constable. 

Upon  all  of  the  cases  I  think  it  is  proved  that  there  can  be  no  con- 
viction for  crime  in  England  in  the  absence  of  a  criminal  miud  or 
mens  rea. 

Then  comes  the  question,  what  is  the  true  meaning  of  the  phrase? 
I  do  not  doubt  that  it  exists  where  the  prisoner  knowingly  does  acts 
which  would  constitute  a  crime  if  the  result  were  as  he  anticipated,  but 
in  which  the  result  may  not  improbably  end  by  bringing  the  offence 
within  a  more  serious  class  of  crime.  As  if  a  man  strikes  with  a  dan- 
gerous weapon,  with  intent  to  do  grievous  bodily  harm,  and  kills,  the 
result  makes  the  crime  murder.  The  prisoner  has  run  the  risk.  So,  if 
a  prisoner  do  the  prohibited  acts,  without  caring  to  consider  what  the 
truth  is  as  to  facts  —  as  if  a  prisoner  were  to  abduct  a  girl  under  sixteen 
without  caring  to  consider  whether  she  was  in  truth  under  sixteen  —  he 
runs  the  risk.  So  if  he  without  abduction  defiles  a  girl  who  is  in  fact 
under  ten  3-ears  old,  with  a  belief  that  she  is  between  ten  and  twelve. 
If  the  facts  were  as  he  believed,  he  would  be  committing  the  lesser  crime. 
Then  he  runs  the  risk  of  his  crime  resulting  in  the  greater  crime.  It  is 
clear  that  ignorance  of  the  law  does  not  excuse.  It  seems  to  me  to  fol- 
low that  the  maxim  as  to  ■mens  rea  applies,  whenever  the  facts  which 
are  present  to  the  prisoner's  mind,  and  which  he  has  reasonable  ground 
to  believe,  and  does  believe  to  be  the  facts,  would,  if  true,  make  his 
acts  no  criminal  offence  at  all. 

It  may  be  true  to  sa}'  that  the  meaning  of  the  word  "  unlawfully  "^  is 
that  the  prohibited  acts  be  done  without  justification  or  excuse  ;  I,  of 
course,  agree  that  if  there  be  a  legal  justification  there  can  be  no  crime  ; 
but  I  come  to  the  conclusion  that  a  mistake  of  facts,  on  reasonable 
grounds,  to  the  extent  that  if  the  facts  were  as  believed,  the  acts  of  the 
prisoner  would  make  him  guilt}'  of  no  criminal  offence  at  all,  is  an 
excuse,  and  that  such  excuse  is  implied  in  ever}'  criminal  charge  and 
every  criminal  enactment  in   England.     I  agree  with  Lord  Kenton 


SECT.  II.]  REGINA   V.    PRINCE,  281 

that  "such  is  our  hiw,"  airJ  with  Cockburn,  C.  J.,  that  "such  is  the 
foundation  of  all  criminal  procedure." 

Bramwell,  B.^  The  question  in  this  ease  depends  on  the  construc- 
tion of  the  statute  under  which  the  prisoner  is  indicted.  That  enacts 
that  "  whosoever  shall  unlawfully  take  any  unmarried  girl  under  the 
age  of  sixteen  out  of  the  possession  and  against  the  will  of  her  father 
or  mother,  or  any  other  person  having  the  lawful  care  or  charge  of  her, 
shall  be  guilty  of  a  misdemeanor."  Now  the  word  "unlawfully  "  means 
"not  lawfully,"  "otherwise  than  lawfully,"  "without  lawful  cause," 
such  as  would  exist,  for  instance,  on  a  taking  by  a  police  officer  on  a 
charge  of  felony,  or  a  taking  by  a  father  of  his  cliild  from  his  school. 
The  statute,  therefore,  may  be  read  thus  :  "  Whosoever  shall  take,  etc., 
without  lawful  cause."  Now  the  prisoner  had  no  such  cause,  and  con- 
sequently, except  in  so  far  as  it  helps  the  construction  of  the  statute, 
the  word  "  unlawfully  "  may  in  the  present  case  be  left  out,  and  then 
the  question  is,  has  the  prisoner  taken  an  unmarried  girl  under  the  age 
of  sixteen  out  of  the  possession  of  and  against  the  will  of  her  father?  In 
fact,  he  has;  but  it  is  said  not  within  the  meaning  of  the  statute,  and 
that  that  must  be  read  as  though  the  word  "  knowingly,"  or  some  equiv- 
alent word,  was  in  ;  and  the  reason  given  is,  that  as  a  rule  the  mens 
rea  is  necessary  to  make  any  act  a  crime  or  offence,  and  that  if  the  facts 
necessary  to  constitute  an  offence  are  not  known  to  the  alleged  offender, 
there  can  be  no  mens  rea.  I  have  used  the  word  "knowingly  ;  "  but  it 
will,  perhaps,  be  said  that  here  the  prisoner  not  only  did  not  do  the  act 
knowingly,  but  knew,  as  he  would  have  said,  or  believed,  that  the  fact 
was  otherwise  than  such  as  would  have  made  his  act  a  crime  ;  that  here 
the  prisoner  did  not  say  to  himself,  "  I  do  not  know  how  the  fact  is, 
whether  she  is  under  sixteen  or  not,  and  will  take  the  chance,"  but 
acted  on  the  reasonable  belief  that  she  was  over  sixteen  ;  and  that 
though  if  he  had  done  what  he  did,  knowing  or  believing  neither  way, 
but  hazarding  it,  there  would  be  a  mens  rea,  there  is  not  one  when,  as 
he  believes,  he  knows  that  she  is  over  sixteen. 

It  is  impossible  to  suppose  that,  to  bring  the  case  within  the  statute, 
a  person  taking  a  girl  out  of  her  father's  possession  against  his  will  is 
guilty  of  no  offence  unless  he,  the  taker,  knows  she  is  under  sixteen  ; 
that  he  would  not  be  guilty  if  the  jury  were  of  opinion  he  knew  neither 
one  way  nor  the  other.  Let  it  be,  then,  that  the  question  is  whether 
he  is  guilty  where  he  knows,  as  he  thinks,  that  she  is  over  sixteen. 
This  introduces  the  necessity  for  reading  the  statute  with  some  strange 
words  introduced ;  as  thus  :  "  Whosoever  shall  take  any  unmarried 
girl,  being  under  the  age  of  sixteen,  and  not  believing  her  to  be  over 
the  age  of  sixteen,  out  of  the  possession,"  etc.     Those  words  are  not 

1  In  this  opinion  Kelly,  C.  B.,  Cleasby,  Pollock  and  Amphlett,  BB.,  and 
Grove,  Quain,  and  Denman,  JJ.,  concurred.  Blackburn.  J.,  also  delivered  an 
opinion  supporting  the  conviction,  in  which  Cockburn,  C.  J.,  Mellor.  Lush,  Quain, 
Denman,  Archibald,  Field,  and  Lindley,  JJ.,  and  Pollock,  B.,  concurred. 
—  Ed. 


282  REGINA   V.    PRINCE.  [CHAP.  IV. 

there,  and  the  question  is,  whether  we  are  bound  to  construe  the  stat- 
ute as  though  they  were,  on  account  of  the  rule  that  the  mens  rea  is 
necessar}'  to  make  an  act  a  crime.  I  am  of  opinion  that  we  are  not, 
nor  as  though  the  word  "  knowingly"  was  there,  and  for  the  following 
reasons  :  The  act  forbidden  is  wrong  in  itself,  if  without  lawful  cause  ; 
I  do  not  sa}'  illegal,  but  wrong.  I  have  not  lost  sight  of  this,  that 
though  the  statute  probably  principally  aims  at  seduction  for  carnal 
purposes,  the  taking  may  be  by  a  female  with  a  good  motive.  Never- 
theless, though  there  may  be  such  cases,  which  are  not  immoral  in  one 
sense,  I  say  that  the  act  forbidden  is  wrong. 

Let  us  remember  what  is  the  case  supposed  by  the  statute.  It  sup- 
poses that  there  is  a  girl  —  it  does  not  say  a  woman,  but  a  girl  — 
something  between  a  child  and  a  woman  ;  it  supposes  she  is  in  the 
possession  of  her  father  or  mother,  or  other  person  having  lawful  care 
or  charge  of  her ;  and  it  supposes  there  is  a  taking,  and  that  that 
taking  is  against  the  will  of  the  person  in  whose  possession  she  is. 
It  is,  then,  a  taking  of  a  girl,  in  the  possession  of  some  one,  against 
his  will.  I  sa}'  that  done  without  lawful  cause  is  wrong,  and  that  the 
legislature  meant  it  should  be  at  the  risk  of  the  taker  whether  or  no 
she  was  under  sixteen.  I  do  not  sa}*  that  taking  a  woman  of  fifty  from 
her  brother's  or  even  father's  house  is  wrong.  She  is  at  an  age  when 
she  has  a  right  to  choose  for  herself;  she  is  not  a  girl,  nor  of  such 
tender  age  that  she  can  be  said  to  be  in  the  possession  of  or  under  the 
care  or  charge  of  anj'one.  I  am  asked  where  I  draw  the  line;  I  answer 
at  when  the  female  is  no  longer  a  girl  in  anyone's  possession. 

But  what  the  statute  contemplates,  and  what  I  say  is  wrong,  is  the 
taking  of  a  female  of  such  tender  _years  that  she  is  properly  called  a 
girl,  can  be  said  to  be  in  another's  possession,  and  in  that  other's  care 
or  charge.  No  argument  is  necessary  to  prove  this  ;  it  is  enough  to 
state  the  case.  The  legislature  has  enacted  that  if  an3'one  does  this 
wrong  act,  he  does  it  at  the  risk  of  her  turning  out  to  be  under  sixteen. 
This  opinion  gives  full  scope  to  the  doctrine  of  the  mens  rea.  If  the 
taker  believed  he  had  the  father's  consent,  though  wrought  he  would 
have  no  mons  rea  ;  so  if  he  did  not  know  she  was  in  anj'one's  posses- 
sion, nor  in  the  care  or  charge  of  anyone.  In  those  cases  he  would  not 
know  he  was  doing  the  act  forbidden  by  the  statute —  an  act  which,  if 
he  knew  that  she  was  in  possession  and  in  care  or  charge  of  anyone, 
he  would  know  was  a  crime  or  not,  according  as  she  was  under  sixteen 
or  not.  He  would  not  know  he  was  doing  an  act  wrong  in  itself, 
whatever  was  liis  intention,  if  done  without  lawful  cause. 

In  addition  to  these  considerations,  one  may  add  that  the  statute 
does  use  the  word  "unlawfully,"  and  does  not  use  the  words  "  know- 
ingh-  "  or  "  not  believing  to  the  contrary."  If  the  question  was  whether 
his  act  was  unlawful,  there  would  be  no  difficult}',  as  it  clearly  was  not 
lawful. 

This  view  of  the  section,  to  m}-  mind,  is  much  strengthened  b}'  a 
reference  to  other  sections  of  the  same  statute.     Sect.   50  makes  it 


SECT.  II.]  REGINA   V.   PRINCE.  283 

a  felony  to  unlawfully  and  carnally  know  a  girl  under  the  age  of  ten. 
Sect.  51  enacts  when  she  is  above  ton  and  under  twelve  to  unlawfully 
and  carnally  know  her  is  a  misdemeanor.  Can  it  be  supposed  tliat  in 
the  former  case  a  person  indicted  miglit  claim  to  be  acquitted  on  the 
ground  that  he  had  believed  the  girl  was  over  ten  though  under  twelve, 
and  so  that  he  had  only  committed  a  misdemeanor ;  or  that  he  believed 
her  over  twelve,  and  so  had  committed  no  offence  at  all;  or  that  in  a 
case  under  s.  51  he  could  claim  to  be  acquitted,  because  he  believed  her 
over  twelve  ?  In  both  cases  the  act  is  intrinsically  wrong  ;  for  the  stat- 
ute says  if  ''  unlawfully  "  done.  The  act  done  with  a  mens  rea  is  un- 
lawfully and  carnally  knowing  the  girl,  and  tlie  man  doing  that  act  does 
it  at  the  risk  of  the  child  being  under  the  statutory  age.  It  would  be 
mischievous  to  hold  otherwise.  So  s.  56,  by  which,  whoever  shall  take 
away  any  child  under  fourteen  with  intent  to  deprive  parent  or  guardian 
of  the  possession  of  the  child,  or  with  intent  to  steal  any  article  upon 
such  child,  shall  be  guilty  of  felony.  Could  a  prisoner  say,  "  I  did 
take  away  the  cliild  to  steal  its  clothes,  but  I  believed  it  to  be  over 
fourteen?"  If  not,  then  neither  could  he  say,  **Idid  take  the  child 
with  intent  to  deprive  the  parent  of  its  possession,  and  I  believed  it 
over  fourteen."  Because  if  words  to  that  effect  cannot  be  introduced 
into  the  statute  where  the  intent  is  to  steal  the  clothes,  neither  can  they 
where  the  intent  is  to  take  the  child  out  of  the  possession  of  the  parent. 
But  if  those  words  cannot  be  introduced  in  s.  56,  why  can  they  be  in 


S.  00 


The  same  principle  applies  in  other  cases.  A  man  was  held  liable  for 
assaulting  a  police  officer  in  the  execution  of  his  duty,  though  he  did  not 
know  he  was  a  police  officer.  (10  Cox,  Cr.  C.  362.)  Why?  because  the 
act  was  wrong  in  itself  So,  also,  in  the  case  of  burglary,  could  a  person 
charged  claim  an  acquittal  on  the  ground  that  he  believed  it  was  past 
six  when  he  entered,  or  in  housebreaking,  that  he  did  not  know  the 
place  broken  into  was  a  house?  Take  also  the  case  of  libel,  published 
when  the  publisher  thought  the  occasion  privileged,  or  that  he  had  a 
defence  under  Lord  Campbell's  Act,  but  was  wrong;  he  could  not  be 
entitled  to  be  acquitted  because  there  was  no  mens  rea.  "Why?  because 
the  act  of  publishing  written  defamation  is  wrong  where  there  is  no 
lawful  cause. 

As  to  the  case  of  the  marine  stores,  it  was  held  properly  that  there 
was  no  mens  rea  where  the  person  chai-ged  with  the  possession  of 
naval  stores  with  the  Admiralty  mark  did  not  know  the  stores  he  had 
bore  the  mark  :  Reg.  v.  Sleep,  8  Cox,  Cr.  C.  472  ;  because  there  is 
nothing  prima  facie  wrong  oi  immoral  in  having  naval  stores  unless 
they  are  so  marked.  But  suppose  his  servant  had  told  him  that  there 
was  a  mark,  and  he  had  said  he  would  chance  whether  or  not  it  was  the 
Admiralty  mark  ?  So  in  the  case  of  the  carrier  with  game  in  his  pos- 
session ;  unless  he  knew  he  had  it,  there  would  be  nothing  done  or 
permitted  by  him,  no  intentional  act  or  omission.     So  of  the  vitriol 


284  EEGINA    V.    PRINCE.  [CHAP.  IV. 

senders ;  there  was  nothing  wrong  in  sending  such  packages  as  were 
sent  unless  they  contained  vitriol. 

Further,  there  have  been  four  decisions  on  this  statute  in  favour  of 
the  construction  I  contend  for.  I  saj'  it  is  a  question  of  construction 
of  this  particular  statute  in  doubt,  bringing  thereto  the  common  law 
doctrine  of  mens  rea  being  a  necessary  ingredient  of  crime.  It  seems 
to  me  impossible  to  say  that  where  a  person  takes  a  girl  out  of  her 
father's  possession,  not  knowing  whether  she  is  or  is  not  under  sixteen, 
that  he  is  not  guilty ;  and  equally  impossible  wiien  he  believes,  but 
erroneously,  that  she  is  old  enough  for  him  to  do  a  wrong  act  with 
safety.     I  think  the  conviction  should  be  affirmed. 

Denman,  J.  I  agree  in  the  judgment  of  my  Brothers  Bramwell  and 
Blackburn,  and  I  wish  what  I  add  to  be  understood  as  supplementary 
to  them.  The  defendant  was  indicted  under  the  24  &  25  Vict  c.  100, 
s.  55,  which  enacts  that  "•  whosoever  shall  unlawfulh^  take,  or  cause  to 
be  taken,  any  unmarried  girl,  being  under  the  age  of  sixteen  years,  out 
of  the  possession  and  against  the  wish  of  her  father  or  mother,  or  of 
any  other  person  having  the  lawful  care  or  charge  of  her,  shall  be  guilty 
of  a  misdemeanor." 

I  cannot  hold  that  the  word  "  unlawfully  "  is  an  immaterial  word  in 
an  indictment  framed  upon  this  clause.  I  think  that  it  must  be  taken 
to  have  a  meaning,  and  an  important  meaning,  and  to  be  capable  of 
being  supported  or  negatived  by  evidence  upon  the  trial :  see  Reg.  v. 
Turner,  2  Moo.  Cr.  C.  41 ;  Reg.  v.  Ryan,  2  Hawk.  P.  C.  C.  25,  §  96. 

In  the  present  case  the  jury  found  that  the  defendant  had  doneever}'- 
thing  required  to  bring  himself  within  the  clause  as  a  misdemeanant, 
unless  the  fact  that  he  bona  fide  and  reasonably  believed  the  girl  taken 
by  him  to  be  eighteen  years  old  constituted  a  defence.  That  is  in 
other  woitIs,  unless  such  bona  fide  and  reasonable  belief  prevented 
them  from  saying  that  the  defendant  in  what  he  did  acted  "•  unlawfulh'  " 
within  the  meaning  of  the  clause.  The  question,  therefore,  is  whether, 
upon  this  finding  of  the  jur}',  the  defendant  did  unlawfully  do  the  things 
which  they  found  him  to  have  done. 

The  solution  of  this  question  depends  upon  the  meaning  of  the  word 
"•  unlawfully  "  in  s.  55.  If  it  means  "  with  a  knowledge  or  belief  that 
every  single  thing  mentioned  in  the  section  existed  at  the  moment  of 
the  taking,"  undoubtedly  the  defendant  would  be  entitled  to  an  acquittal, 
because  he  did  not  believe  that  a  girl  of  under  sixteen  was  being  takcK 
by  him  at  all.  If  it  only  means  "  without  lawful  excuse  "  or  justifica- 
tion, then  a  further  question  arises,  viz.,  whether  the  defendant  had  any 
lawful  excuse  or  justification  for  doing  all  the  acts  mentioned  in  the 
clause  as  constituting  the  offence,  by  reason,  merel}',  that  he  bona  fide 
and  reasonably  believed  the  girl  to  be  older  than  the  age  limited  b}-  the 
clause.  Bearing  in  mind  the  previous  enactments  relating  to  the  abduc- 
tion of  girls  under  sixteen,  4  &  5  Phil.  &  Mary,  c.  8,  s.  2,  and  tlie  gen- 
eral course  of  the  decisions  upon  those  enactments,  and  upon  the  present 
statute,  and  looking  at  the  mischief  intended  to  be  guarded  against. 


SECT.  II.]  REGINA   V.    PRINCE.  285 

it  appears  to  me  reasonably  clear  that  the  word  "unlawfully,"  in  the 
true  sense  in  which  it  was  used,  is  fully  satisfied  by  holding  that  it  is 
equivalent  to  the  words  "  without  lawful  excuse,"  using  those  words  aa 
equivalent  to  *■'  without  such  an  excuse  as  being  proved  would  be  a 
complete  legal  justification  for  the  act,  even  where  all  the  facts  con- 
stituting the  offence  exist." 

Cases  may  easily  be  suggested  where  such  a  defence  might  be  made 
out,  as,  for  instance,  if  it  were  proved  that  he  had  the  authorit}-  of  a 
Court  of  competent  jurisdiction,  or  of  some  legal  warrant,  or  that  he 
acted  to  prevent  some  illegal  violence  not  justified  by  the  relation  of 
parent  and  child,  or  school-mistress,  or  other  custodian,  and  requiring 
forcible  interference  by  waj'  of  protection. 

In  the  present  case  the  jur}-  find  that  the  defendant  believed  the  girl 
to  be  eighteen  years  of  age  ;  even  if  she  had  been  of  that  age,  she  would 
have  been  in  the  lawful  care  and  charge  of  her  father,  as  her  guardian 
by  nature:  see  Co.  Litt.  88,  b,  n.  12,  19th  ed.,  recognized  in  Reg.  r. 
Howes,  3  E.  &  E.  332.  Her  father  had  a  right  to  her  personal  custody 
up  to  the  age  of  twenty-one,  and  to  appoint  a  guardian  by  deed  or  will, 
whose  right  to  her  personal  custody  would  have  extended  up  to  the 
same  age.  The  belief  that  she  was  eighteen  would  be  no  justification 
to  the  defendant  for  taking  her  out  of  his  possession,  and  against  his 
will.  By  taking  her,  even  with  her  own  consent,  he  must  at  least  have 
been  guilty  of  aiding  and  abetting  her  in  doing  an  unlawful  act,  viz.,  in 
escaping  against  the  will  of  her  natural  guardian  from  his  lawful  care 
and  charge.  This,  in  ray  opinion,  leaves  him  wholly  without  lawful 
excuse  or  justification  for  the  act  he  did,  even  though  he  believed  that 
the  girl  was  eighteen,  and  therefore  unal)le  to  allege  that  what  he  has 
done  was  not  unlawfull}'  done,  within  the  meaning  of  the  clause.  In 
other  words,  having  knowingly  done  a  wrongful  act,  viz.,  in  taking  the 
girl  away  from  the  lawful  possession  of  her  father  against  his  will,  and 
in  violation  of  his  rights  as  guardian  bj'  nature,  he  cannot  be  heard  to 
say  that  he  thought  the  girl  was  of  an  age  beyond  that  limited  1)3'  the 
statute  for  the  off"ence  charged  against  him.  He  had  wrongfully  done 
the  very  thing  contemplated  by  the  legislature  :  He  had  wrongfullv  and 
knowingly  violated  the  father's  rights  against  the  father's  will.  And 
he  cannot  set  up  a  legal  defence  bj'  mei'el}'  proving  that  he  thought  he 
was  committing  a  different  kind  of  wrong  from  that  which  in  fact  he 
■?pas  committing.  Conviction  affirmed. 


286  REYNOLDS  V.   UNITED  STATES.         [CHAP.  IV. 


REYNOLDS  v.  UNITED   STATES. 
Supreme  Court  of  the  United  States.     1878. 

[Reported  98  United  States,  145.] 

Error  to  the  Supreme  Court  of  the  Territory  of  Utah. 

This  is  an  indictment  found  in  the  District  Court  for  the  third  judici.^.l 
district  of  the  Territory  of  Utah,  charging  George  Reynolds  witli  bigamy 
in  violation  of  sect.  5352  of  the  Revised  Statutes.^ 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

In  our  opinion,  the  statute  immediately  under  consideration  is  within 
the  legislative  power  of  Congress.  It  is  constitutional  and  valid  as  pre- 
scribing a  rule  of  action  for  all  those  residing  in  the  Territories,  and  in 
places  over  which  the  United  States  have  exclusive  control.  This  being 
so,  the  only  question  which  remains  is,  whether  those  who  make  polvg- 
amv  a  part  of  their  religion  are  excepted  from  the  operation  of  the 
statute.  If  they  are,  then  those  who  do  not  make  polygamy  a  part  of 
their  religious  belief  may  be  found  guilty  and  punished,  while  those 
who  do,  must  be  acquitted  and  go  free.  This  would  be  introducing  a 
new  element  into  criminal  law.  Laws  are  made  for  the  government  of 
actions,  and  while  the}-  cannot  interfere  with  mere  religious  belief  and 
opinions,  the}*  ma}'  with  practices.  Suppose  one  believed  that  human 
sacrifices  were  a  necessary  part  of  religious  worship,  would  it  be  seri- 
ously contended  that  the  civil  government  under  which  he  lived  could 
not  interfere  to  prevent  a  sacrifice?  Or  if  a  wife  religiously  believed  it 
was  her  duty  to  burn  herself  upon  the  funeral  pile  of  her  dead  husband, 
would  it  be  beyond  the  power  of  the  civil  government  to  prevent  her 
carrying  her  belief  into  practice? 

So  here,  as  a  law  of  the  organization  of  society  under  the  exclusive 
dominion  of  the  United  States,  it  is  provided  that  plural  marriages  shall 
not  be  allowed.  Can  a  man  excuse  his  practices  to  the  contrary  because 
of  his  religious  belief?  To  permit  this  would  be  to  make  the  professed 
doctrines  of  religious  belief  superior  to  the  law  of  the  land,  and  in  effect 
to  permit  every  citizen  to  become  a  law  unto  himself.  Government 
could  exist  only  in  name  under  such  circumstances. 

A  criminal  intent  is  generally  an  element  of  crime,  but  every  man  is 
presumed  to  intend  the  necessary  and  legitimate  consequences  of" what 
he  knowingly  does.  Here  the  accused  knew  he  had  been  once  married, 
and  that  his  first  wife  was  living.     He  also  knew  that  his  second  mar- 

1  Part  only  of  tlie  case,  relating  to  the  question  of  intent,  is  here  given. 


SECT,  II.]  UNITED    STATES   V.    HAKMON.  287 

jiage  was  forbidden  by  law.  When,  therefore,  he  married  the  second 
time,  he  is  presumed  to  have  intended  to  break  the  law.  And  the 
breaking  of  the  law  is  the  crime.  Ever}-  act  necessary  to  constitute 
the  crime  was  knowingly  done,  and  the  crime  was  therefore  knowingly 
committed.  Ignorance  of  a  fact  may  sometimes  be  taken  as  evidence 
of  a  want  of  criminal  intent,  but  not  ignorance  of  tlie  law.  The  only 
defence  of  the  accused  in  this  case  is  his  belief  that  the  law  ought  not 
to  have  been  enacted.  It  matters  not  that  his  belief  was  a  part  of  his 
professed  religion  ;  it  was  still  belief,  and  belief  only.^ 


UNITED    STATES   v.  HARMON. 
United  States  District  Court,  Dist.  of  Kansas.     1891. 

[Reported  45  Federal  Reporter,  414.] 

Philips,  J."*  Reduced  to  its  actual  essence,  the  ultimate  position  of 
defendant  is  this  :  That  although  the  language  employed  in  the  given 
article  may  be  obscene,  as  heretofore  defined,  yet  as  it  was  a  necessary 
vehicle  to  convey  to  the  popular  mind  the  aggravation  of  the  abuses  in 
sexual  commerce  inveighed  against,  and  the  object  of  the  publisher 
being  to  correct  the  evil  and  thereby  alleviate  human  condition,  the 
anthor  should  be  deemed  a  public  benefactor,  rather  than  a  malefactor. 
In  short,  the  proposition  is  that  a  man  can  do  no  public  wrong  who 
believes  that  what  he  does  is  for  the  ultimate  public  good.  The  under- 
lying vice  of  all  this  character  of  argument  is  that  it  leaves  out  of  view 
the  existence  of  the  social  compact,  and  the  idea  of  government  by  law. 
If  the  end  sought  justifies  the  means,  and  there  were  no  arbiter  but  the 
individual  conscience  of  the  actor  to  determine  the  fact  whether  the 
means  are  justifiable,  homicide,  infanticide,  pillage,  and  incontinence 
might  run  riot ;  and  it  is  not  extravagant  to  predict  that  the  success  of 
such  philosophy  would  remit  us  to  that  barbaric  condition  where 

"  No  common  weal  the  human  tribe  allied, 
Bound  by  no  law,  by  no  fixed  morals  tied, 
Each  snatched  the  booty  which  his  fortune  brought, 
And  wise  in  instinct  each  his  welfare  sought." 

Guiteau  stoutly  maintained  to  the  end  his  sanity,  and  that  he  felt  he 
had  a  patriotic  mission  to  fulfil  in  taking  off  President  Garfield,  to  the 
salvation  of  a  political  party.    The  Hindu  mother  cast  her  babe  to  the 

1  Ace.  State  v.  White,  64  N.  H.  48,  5  Atl.  828.  —  Ed. 

2  Part  of  the  opinion  only  is  given.  The  case  was  an  indictment  for  depositing  an 
obscene  publication  in  the  United  States  post-office  in  violation  of  the  provisions  of 
section  3893  of  the  Revised  Statutes  of  the  United  States.  Tlie  defendant  attenij.ted 
to  justify  his  act  on  the  ground  that  he  was  actuated  solely  by  the  desire  to  improve 
sexual  habits,  and  thus  benefit  the  human  race.  —  Ed. 


288  ANONYMOUS.  [CHAP.  IV. 

advouring  Ganges  to  appease  the  gods.  But  civilized  society  says  both 
are  murderers.  The  Mormon  contends  that  his  religion  teaches  pohg- 
aai}- ;  and  there  is  a  school  of  so-called  "  modern  thinkers"  who  would 
al)olish  monogam}-,  and  erect  on  the  ruins  the  flagrant  doctrine  of 
promiscuit}',  under  tlie  disguise  of  the  affinities.  All  these  claim  libert}" 
of  conscience  and  thought  as  the  basis  of  their  dogmas,  and  the  pro 
bono  publico  as  the  strength  of  their  claim  to  indulgence.  The  law 
against  adulter}-  itself  would  lie  dormant  if  the  libertine  could  get  the 
courts  to  declare  and  the  jurj'  in  obedience  thereto  to  say  that  if  he 
invaded  the  sanctuary  of  conjugal  life  under  the  belief  that  the  im[)rove- 
ment  of  the  human  race  demanded  it  he  was  not  amenable  to  the  statute. 
Societ}'  is  organized  on  the  theory,  born  of  the  necessities  of  human 
well-being,  that  each  member  yields  up  something  of  his  natural  privi- 
leges, predilections,  and  indulgences  for  tlie  good  of  the  composite 
communit}' ;  and  he  consents  to  all  the  motto  implies,  salus  jyopuli 
suprema  est  lex;  and,  as  no  government  can  exist  without  law,  the  law- 
making power,  within  the  limits  of  constitutional  authoritj",  must  be 
recognized  as  the  bod}'  to  prescribe  what  is  right  and  prohibit  what  is 
wrong.  It  is  the  very  incarnation  of  the  spirit  of  anarchy  for  a  citizen 
to  proclaim  that  like  the  heathen  he  is  a  law  unto  himself.  The  respon- 
sibility for  this  statute  rests  upon  Congress.  The  duty  of  the  courts  is 
imperative  to  enforce  it  while  it  stands. 


ANONYMOUS. 
Reporters'  Note.     1498. 

[Reported  Year-Bool-,  13  Hen.  VII.  14,  /)/.  S.] 

Hussey  said  that  a  question  had  been  put  to  him,  which  was  this: 
A  clerk  of  a  church  being  in  a  chamber  struck  another  with  the  keys 
of  the  church  ;  which  with  the  force  of  the  blow  flew  out  of  his  hand 
and  through  a  window,  and  put  out  tiie  eve  of  a  woman.  The  question 
was,  whether  it  should  be  called  maihem  or  not.  And  it  seems  that  it 
was,  because  he  had  a  bad  intent  at  the  beginning  ;  but  it  should  be  well 
considered  in  assessing  the  damages. 


SECT.  II. J  KEGINA   V.   BRUCE.  y89 


REX   y.  BLACKHAM. 
CiiowN  Case  Kesekved.    1787. 

[Reported  2  East,  Pleas  of  the  Crown,  711.] 

Blackham  assaulted  a  woman  with  intent  to  commit  a  rape,  and  she 
without  any  demand  JVom  him  ottered  him  money,  which  the  prisoner 
toolv  and  put  into  his  pocket,  but  continued  to  treat  her  with  violence 
to  effect  his  original  purpose  till  he  was  interrupted  by  the  approach  of 
another  person.  This  was  holden  to  be  robber}'  by  a  considerable 
majority  of  the  judges  ;  for  the  woman,  from  violence  and  terror  occa- 
sioned by  the  prisoner's  behavior,  and  to  redeem  her  cliastity,  offered 
the  inone}-,  which  it  was  clear  she  would  not  have  given  voluntarily  ; 
and  the  prisoner,  by  taking  it,  derived  that  advantage  to  himself  from 
his  felonious  conduct ;  though  his  original  intent  were  to  commit  a  rape. 


REGINA  V.  BRUCE. 
Central  Criminal  Court.    1847. 

[Reported  2  Cox  C.  C.  262.] 

The  prisoner  was  indicted  for  manslaughter,  under  the  circumstances 
detailed  by  one  of  the  witnesses.  He  said  the  prisoner  came  into  his 
master's  shop,  and  pulled  him  b}'  the  hair  off  a  cask  where  he  was  sit- 
ting, and  shoved  him  to  the  door,  and  from  the  door  back  to  the  counter. 
That  the  prisoner  then  put  his  arm  round  his  neck  and  spun  him  round, 
and  they  came  together  out  of  the  shop;  the  prisoner  kept  "  hold  of 
the  witness  when  they  were  outside,  and  kept  spinning  him  round  ;  the 
latter  broke  away  from  him,  and,  in  consequence  and  at  the  moment  of 
his  so  doing,  he  (the  prisoner)  reeled  out  into  the  road  and  knocked 
against  a  woman  who  was  passing  and  knocked  her  down.  The  prisoner 
was  veiy  drunk,  and  staggered  as  he  walked." 

The  woman  so  knocked  down  died  shortly  afterwards  of  the  injuries 
she  had  received,  and  it  was  for  having  caused  her  death  that  the  pris- 
oner was  indicted. 

Mr.  Justice  Erle  inquired  of  the  witness  (a  young  lad)  whether  he 
resisted  the  prisoner  during  the  transaction.  The  lad  answered  that  he 
did  not:  he  thought  the  prisoner  was  only  placing  with  him,  and  was 
sure  that  it  was  intended  as  a  joke  throughout. 

Erle,  J.  (to  the  jury).  I  think,  upon  this  evidence,  you  must  acquit 
the  prisoner.  Where  the  death  of  one  person  is  caused  by  the  act  of 
another,  while  the  latter  is  in  pui'suit  of  any  unlawful  object,  the  person 
so  killing  is  guilty  of  manslaughter,  although  he  had  no  intention  what- 
ever of  injuring  him  who  was  the  victim  of  his  conduct.     Here,  however, 


290  REGINA   V.   FRANKLIN.  [CHAP.  IV. 

there  was  nothing  unlawful  in  what  the  prisoner  did  to  this  lad,  and 
which  led  to  the  death  of  the  woman.  Had  his  treatment  of  the  boy 
been  against  the  will  of  the  latter,  the  prisoner  would  have  been  com- 
mitting an  assault  —  an  unlawful  act  —  which  would  have  rendered 
him  amenable  to  the  law  for  any  consequences  resulting  from  it ;  but 
as  every  thing  tliat  was  done  was  with  tlie  witness's  consent,  there  was 
no  assault,  and  consequently  no  illegality.  It  is,  in  the  eye  of  the  law, 
an  accident,  and  nothing  more. 


REGINA   V.  FRANKLIN. 
Sussex  Assizes.     1883. 

[Reported  15  Cox  C.C.  163] 

Charles  Harris  Franklin  was  indicted  l)efore  Field,  J.,  at  Lewes, 
for  the  manslaughter  of  Craven  Patrick  Trenchard. 

The  facts  were  as  follows : 

On  the  morning  of  the  2oth  daj-  of  July,  1882,  the  deceased  was  bath- 
ing in  the  sea  from  the  West  Pier,  at  Brighton,  and  swimming  in  the 
deep  water  around  it.  The  prisoner  took  up  a  good  sized  box  from 
the  refreshment  stall  on  the  pier  and  wantonl}'  threw  it  into  the  sea. 
Unfortunately  the  box  struck  the  deceased,  C.  P.  Trenchard,  who  was 
at  that  moment  swimming  underneath,  and  so  caused  his  death. 

Gore,  for  the  prosecution,  urged  that  it  would,  apart  from  the  ques- 
tion of  negligence,  be  sufficient  to  constitute  the  offence  of  manslaughter, 
that  the  act  done  b}'  the  prisoner  was  an  unlawful  act,  which  the  facts 
clearly  showed  it  to  be,  and  cited  the  case  of  Rex  v.  Fenton,  1  Lewin's 
Cr.  Cas.  179.  This  case  is  referred  to  in  1  Russell  on  Crimes,  638  :  "If 
death  ensues  in  consequence  of  a  wrongful  act,  which  the  party  who 
commits  it  can  neither  justif\'  nor  excuse,  it  is  manslaughter.  An  indict- 
ment charged  that  there  was  a  scaffolding  in  a  certain  coal  mine,  and 
that  the  prisoners,  by  throwing  large  stones  down  the  mine,  broke  the 
scaffolding,  and  that  in  consequence  of  the  scaffolding  being  so  broken 
a  corf  in  which  the  deceased  was  descending  the  mine  struck  against  a 
beam  on  which  the  scaffolding  had  been  supported,  and  bj'  such  striking 
the  corf  was  overturned  and  the  deceased  precipitated  into  the  mine 
and  killed.  Tindal,  C.  J.,  said  :  If  death  ensues  as  the  consequence  of  a 
wrongful  act,  which  the  part}'  who  commits  it  can  neither  justif}'  nor 
excuse,  it  is  not  accidental  death,  but  manslaughter.  If  the  wrongful 
act  was  done  under  circumstances  which  show  an  intent  to  kill  or  do 
any  serious  injur}'  in  the  particular  case,  or  any  general  malice,  the 
offence  becomes  that  of  murder.  In  the  present  instance  the  act  was 
one  of  mere  wantonness  and  sport,  but  still  the  act  was  wrongful,  it  was 
a  trespass.    The  only  question,  therefore,  is,  whether  the  death  of  the 


SECT.,  II.]  COMMONWEALTH    V.    ADAMS.  291 

party  is  to  be  fairly  and  rcasonabl}'  considered  as  a  consequence  of 
such  wrongful  act.  If  it  followed  from  such  wrongful  act.  as  an  effect 
from  a  cause,  the  offence  is  manslaughter  ;  if  it  is  altogether  unconnected 
with  it,  it  is  accidental  death." 

Field,  J.  This  is  a  question  of  great  importance,  for  if  I  must  follow 
the  ruling  of  the  very  learned  judge  in  Reg.  v.  Fenton  (nfjt  supra)  it  will 
be  necessary  to  go  into  the  question  whether  the  prisoner  was  guilty  of 
negligence.     I  will  consult  my  brother  Mathew  upon  the  pouit. 

Field,  J.,  after  a  short  interval,  returned  into  court  and  said  :  I  am 
of  opinion  that  the  case  must  go  to  the  jury  upon  the  broad  ground  of 
negligence,  and  not  upon  the  narrow  ground  proposed  b}'  the  learned 
counsel,  because  it  seems  to  me  —  and  I  may  say  that  m  this  view  luy 
brother  Mathew  agrees  —  that  the  mere  fact  of  a  civil  wrong  committed 
by  one  person  against  another  ought  not  to  be  used  as  an  incident  which 
is  a  necessary  step  in  a  criminal  case.  I  have  a  great  abhorrence  of 
constructive  crime.  We  do  not  think  the  case  cited  by  the  counsel  for 
the  prosecution  is  binding  upon  us  in  the  facts  of  this  case,  and,  there- 
fore, the  civil  wrong  against  the  refreshment-stall  keeper  is  immaterial 
to  this  charge  of  manslaughter.  I  do  not  think  that  the  facts  of  this 
case  bring  it  clearly  within  the  principle  laid  down  b^-  Tindal,  C.  J.,  in 
Reg.  V.  Fenton.  If  I  tliought  this  case  was  in  principle  like  that  case 
I  would,  if  requested,  state  a  case  for  the  opinion  of  the  Court  of  Crimi- 
nal Appeal.     But  I  do  not  think  so. 

It  was  not  disputed  that  the  prisoner  threw  the  box  over  the  pier, 
that  the  box  fell  upon  the  bo}',  and  the  death  of  the  boy  was  caused  by 
the  box  falling  upon  him. 

Gill^  for  the  prisoner,  relied  upon  the  point  that  there  was  not  proved 
such  negligence  as  was  criminal  negligence  on  the  part  of  the  prisoner. 

Field,  J.,  in  summing  up  the  case  to  the  jury,  went  carefully  through 
the  evidence,  pointing  out  how  the  facts  as  admitted  and  proved  affected 
the  prisoner  upon  the  legal  question  as  he  had  explained  it  to  them. 

The  jury  returned  a  verdict  of  guilty  of  manslaughter.  Guilty 

The  prisoner  was  sentenced  to  two  months'  imprisonment 


COMMONWEALTH   v.  ADAMS. 
Supreme  Judicial  Court  of  Massachusetts.    1873. 

[Reported  114  Massachusetts,  323.] 

Complaint  for  assault  and  batter}'. 

At  the  trial  in  the  Superior  Court,  before  Bacon,  J.,  it  appeared  that 
the  defendant  was  driving  in  a  sleigh  down  Beacon  Street,  and  was 
approaching  the  intersection  of  Charles  Street,  when  a  team  occupied 
the  crossing.    The  defendant  endeavored  to  i>ass  the  team  while  driving 


292  COMMONWEALTH    V.    ADAMS.  [CHAP.  IV. 

at  a  rate  prohibited  b}-  an  ordinance  of  the  city  of  Boston.  In  so  doing, 
he  ran  against  and  knocked  down  a  boy  who  was  crossuig  Beacon  Street. 
No  special  intent  on  the  part  of  the  defendant  to  injure  the  boy  was 
shown.  The  defendant  had  pleaded  guilty  to  a  complaint  for  fast  driv- 
ing, in  violation  of  the  city  ordinance.  The  Commonwealth  asked  for  a 
verdict,  upon  the  ground  that  the  intent  to  violate  the  city  ordinance 
supplied  the  intent  necessary  to  sustain  the  charge  of  assault  and  bat- 
tery. The  court  so  I'uled,  and  thereupon  the  defendant  submitted  to  a 
verdict  of  guilty,  and  the  judge,  at  the  defendant's  request,  reported 
the  case  for  the  determination  of  this  court. 

A.  Russ,  for  the  defendant. 

C  a.  Train.,  Attorney-General,  for  the  Commonwealth. 

Endicott,  J.  We  are  of  opinion  that  the  ruling  in  this  case  cannot 
be  sustained.  It  is  true  that  one  in  the  pursuit  of  an  unlawful  act  may 
sometimes  be  punished  for  another  act  done  without  design  and  by  mis- 
take, if  the  act  done  was  one  for  which  he  could  have  been  punished  if 
done  wilfully.  But  the  act,  to  be  unlawful  in  this  sense,  must  be  an  act 
bad  in  itself,  and  done  with  an  evil  intent ;  and  the  law  has  always 
made  this  distinction  :  that  if  the  act  the  party  was  doing  was  merely 
malum  prohibitum.,  he  shall  not  be  punishable  for  the  act  arising  from 
misfortune  or  mistake  ;  but  if  malum  in  se,  it  is  otherwise.  1  Hale 
P.  C.  39  ;  Foster  C.  L.  259.  Acts  mala  in  se  include,  in  addition  to 
felonies,  all  breaches  of  public  order,  injuries  to  person  or  property, 
outrages  upon  public  decency  or  good  morals,  and  breaches  of  official 
duty,  when  done  wilfuU}'  or  corruptl}'.  Acts  mala  jjrohibita  include 
an}'  matter  forbidden  or  commanded  by  statute,  but  not  otherwise  wrong. 
3  Greenl.  Ev.  §  1.  It  is  within  the  last  class  that  the  city  ordinance  of 
Boston  falls,  prohibiting  driving  more  than  six  miles  an  hour  in  the 
streets. 

Besides,  to  prove  the  violation  of  such  an  ordinance,  it  is  not  neces- 
sary to  show  that  it  was  done  wilfully  or  corrupth'.  The  ordinance 
declares  a  certain  thing  to  be  illegal ;  it  therefore  becomes  illegal  to  do 
it,  without  a  wrong  motive  charged  or  necessary  to  he  proved  ;  and 
the  court  is  bound  to  administer  the  penalty,  although  there  is  an  entire 
want  of  design.  The  King  v.  Sainsbury,  4  T.  R.  451,  457.  It  was  held 
in  Commonwealth  v.  Worcester,  3  Pick.  462.  that  proof  onlv  of  the  fact 
that  the  party  was  driving  faster  than  the  ordinance  allowed  was  suf- 
ficient for  conviction.  See  Commonwealth  v.  Farren,  9  Allen,  489  ; 
Commonwealth  v.  Waite,  11  Allen,  264.  It  is  therefore  immaterial 
whether  a  party  violates  the  ordinance  wilfully  or  not.  The  oilence 
consists,  not  in  the  intent  with  which  the  act  is  done,  but  in  doing  the 
act  prohibited,  but  not  otherwise  wrong.  It  is  obvious,  therefore,  that 
the  violation  of  the  ordinance  does  not  in  itself  supply  the  intent  to  do 
another  act  which  requires  a  criminal  intent  to  be  proved.  The  learned 
judge  erred  in  ruling  that  the  intent  to  violate  the  ordinance  in  itself 
supplied  the  intent  to  sustain  the  charge  of  assault  and  battery.  The 
verdict  must  therefore  be  set  aside,  and  a  JVew  trial  granted. 


SECT.  II.]  STATE  V.    HORToN.  293 

STATE    V.    IIORTON. 
Supreme  Couht  of  North  Carolina.     1905. 

[Reported  1.39  iV.  C.  588.] 

Indictment  for  manslaughter  against  W.  P.  Ilorton,  heard  by  Judge 
W.  B.  CouNCiLL  and  a  jiir}-,  at  April  Term,  1905,  of  tlie  Superior  Court 
of  Franklin  County.  Tlie  jury  rendered  a  special  verdict,  and  such 
verdict  and  proceedings  tliereon  are  as  follows: 

''Tliat  in  the    month    of   November,    1904,   to-wit:  on  the day 

thereof,  the  defendant,  AV.  P.  Ilorton;  was  hunting  turkeys  on  the 
lands  of  another;  that  tlie  following  local  statute,  enacted  bv  the  Gen- 
eral Assembly  of  1901,  was  in  force  at  and  in  the  place  in  which  said 
defendant  was  hunting,  to-wit :  chapter  410  of  the  Laws  of  1901  ;  that 
the  said  Ilorton  at  the  time  he  was  so  hunting,  had  not  the  written  con- 
sent of  the  owner  of  said  land,  or  of  his  lavvful  agent;  that  while  so 
engaged  in  hunting  he  killed  Charlie  Hunt,  the  deceased,  but  that  said 
killing  was  wholly  unintentional;  that  the  shooting  of  the  deceased  was 
done  while  the  defendant  was  under  the  impression  and  belief  that  he 
was  shooting  at  a  wild  turkey  ;  that  the  hunting  engaged  in  by  the 
defendant  was  not  of  itself  dangerous  to  human  life,  nor  was  he  reck- 
less in  the  manner  of  hunting  or  of  handling  the  firearm  with  which  the 
killing  was  done  ;  that  hunting  at  that  season  was  not  forbidden  under 
the  general  game  law  of  the  State,  but  was  prohibited  only  by  the 
special  statute  referred  to ;  that  the  shooting  from  which  the  killing 
resulted  was  not  done  in  such  grossl}-  careless  or  negligent  manner  as 
to  imply  any  moral  turpitude,  or  to  indicate  any  indifference  to  the 
safeguarding  of  human  life;  that,  but  for  the  said  statute  herein  incor- 
porated, the  killing  of  the  deceased  by  defendant  does  not  constitute 
any  violation  of  the  law.  If  upon  the  above  findings  of  fact,  the  court 
should  be  of  opinion  that  the  defendant  is  guilty  of  manslaughter,  we 
for  our  verdict  find  the  defendant  guilty  of  manslaughter,  but  if  the 
court  should  be  of  opinion  that  the  defendant  is  not  guilty,  we  for  our 
verdict  find  that  the  defendant  is  not  guilty."  Upon  this  special  find- 
ing, the  court  being  of  opinion  that  the  defendant  was  guilt}'  of  man- 
slaughter, so  adjudged  and  ordered  a  verdict  of  guilty  of  manslaughter 
to  be  entered,  and  gave  judgment  that  the  defendant  be  imprisoned  in 
the  county  jail  of  Franklin,  for  a  period  of  four  months.  Defendant 
excepted  to  the  ruling  of  the  court,  and  appealed  from  the  judgment 
against  him. 

Hoke,  J.,  after  stating  the  ease:  It  will  be  noted  that  the  finding  of 
the  jury  declares  that  the  act  of  the  defendant  was  not  in  itself  danger- 
ous to  human  life,  and  excludes  ever}'  element  of  criminal  negligence, 
and  rests  the  guilt  or  innocence  of  the  defendant  on  the  fact  alone  that 
at  the  time  of  the  homicide  the  defendant  was  hunting  on  another's 
land  without  written  permission  from  the  owner.     The  act  which  applies 


294  STATE   V.    HORTON.  [CHAP.  IV. 

only  in  the  counties  of  Orange,  Franklin,  and  Scotland,  makes  the  con- 
duct a  misdemeanor,  and  imposes  a  punishment  on  conviction,  of  not 
less  than  five  nor  more  tiian  ten  dollars. 

The  statement  sometimes  appears  in  works  of  approved  excellence  to 
the  effect  that  an  unintentional  homicide  is  a  criminal  otTence  when 
occasioned  b}-  a  person  engaged  at  the  time  in  an  unlawful  act.  In 
nearly  ever}'  instance,  however,  will  be  found  the  qualification  that  if 
the  act  in  question  is  free  from  negligence,  and  not  in  itself  of  danger- 
ous tendency,  and  the  criminality  must  arise,  if  at  all,  entirely  from  the 
fact  that  it  is  unlawful,  in  such  case,  the  unlawful  act  must  be  one  that 
is  malum  in  se  and  not  merely  fn alum  prohibitum^  and  this  we  hold  to 
be  the  correct  doctrine.  In  Foster's  Crown  Law,  it  is  thus  stated  at 
page  258  :  "In  order  to  bring  a  case  within  this  description  (excusable 
liomicide)  the  act  upon  which  death  ensueth  must  be  lawful.  Fur  if 
the  act  be  unlawful,  I  mean  if  it  be  mahim  in.  se,  the  case  will  amount 
to  felony,  either  murder  or  manslaughter,  as  circumstances  may  vary 
the  nature  of  it.  If  it  be  done  in  piosecution  of  a  felonious  intent,  it 
will  be  murder ;  but  if  the  intent  went  no  further  than  to  commit  a  bare 
trespass,  it  will  be  manslaughter."  At  page  259,  the  same  author  puts 
an  instance  with  his  comments  thereon  as  follows:  "A  shooteth  at 
the  poultry  of  B  and  by  accident  killeth  a  man  ;  if  his  intention  was  to 
steal  the  poultry,  which  must  be  collected  from  circumstances,  it  will 
be  murder  b}'  reason  of  that  felonious  intent,  but  if  it  was  done  wan- 
tonly and  without  that  intention,  it  will  be  barely  manslaughter.  The 
rule  I  have  laid  down  supposeth  that  the  act  from  which  death  ensued 
was  malum  in  se.  For  if  it  was  barely  malum  2^i'ohibitam^  as  shooting 
at  game  by  a  person  not  qualified  by  statute  law  to  keep  or  use  a  gun 
for  that  purpose,  the  case  of  a  person  so  offending  will  fall  under  the 
same  rule  as  that  of  a  qualified  man.  For  the  statutes  prohibiting  the 
destruction  of  the  game  under  certain  penalties  will  not,  in  a  question 
of  this  kind,  enhance  the  accident  beyond  its  intrinsic  moment." 

One  of  these  disqualifying  statutes  here  referred  to  as  an  instance  of 
m,alum  'prohibitum,  was  an  act  passed  (13  Richard  II,  chap.  13)  to 
prevent  certain  classes  of  persons  from  keeping  dogs,  nets,  or  engines 
to  destro}'  game,  etc.,  and  the  punishment  imposed  on  conviction  was 
one  year's  imprisonment.     There  were  others  imposing  a  lesser  penalty. 

Bishop,  in  his  work,  entitled  New  Criminal  Law,  vol.  1,  sec.  332, 
treats  of  the  matter  as  follows  :  "In  these  cases  of  an  unintended  evil 
result,  the  intent  whence  the  act  accidentally  sprang  must  probabl}-  be, 
if  specific,  to  do  a  thing  which  is  vialum  in  se  and  not  merelj-  malum, 
prohibiiuiji."  Thus  Archbold  says  :  "  When  a  man  in  the  execution 
of  one  act,  by  misfortune  of  chance  and  not  designedl}',  does  another 
act  for  which,  if  he  had  wilfully  committed  it,  he  would  be  liable  to  be 
punished  — in  that  case,  if  the  act  he  were  doing  were  lawful  or  merel}' 
malum  2)rohibitum,  he  shall  not  be  punishable  for  the  act  arising  from 
misfortune  or  chance,  but  if  it  be  malum  in  se,  it  is  otherwise.  To 
illustrate:   since  it  is  malum  2>rohiblfum,    not  malum  in    se,   for    an 


SECT.  II.]  STATE   V.    HORTON.  295 

unauthorized  person  to  kill  game  in  England  contrary  to  the  statutes, 
if,  in  unlawfull}'  shooting  at  game,  he  accidentally  kills  a  man,  it  is  no 
more  criminal  in  him  than  if  he  were  authorized.  But  to  shoot  at 
another's  fowls,  wantonl}-  or  in  sport,  an  act  which  is  rrMhim  in  se, 
though  a  civil  trespass,  and  thereby  accidentally  to  kill  a  human  being 
is  manslaughter.  If  the  intent  in  the  shooting  were  to  commit  larceny 
of  the  fowls,  we  have  seen  that  it  would  be  murder."  To  same  effect 
is  Estelle  v.  State,  21  N.  J.  Law,  182;  Cora.  v.  Adams,  114  Mass. 
323. 

An  offence  vwlum  in  se  is  properh'  defined  as  one  which  is  naturalh' 
evil  as  adjudged  by  the  sense  of  a  civilized  community,  whereas  an  act 
7)ialum  prohibitum  is  wrong  onl}-  because  made  so  by  statute.  For 
the  reason  that  acts  mala  in  se  have,  as  a  rule,  become  criminal  offences 
by  the  course  and  development  of  the  common  law,  an  impression  has 
sometimes  obtained  that  only  acts  can  be  so  classified  which  tlie 
common  law  makes  criminal,  but  this  is  not  at  all  the  test.  An  act 
can  be,  and  frequently  is,  malum  in  se,  when  it  amounts  only  to  a  civil 
trespass,  provided  it  has  a  malicious  element  or  manifests  an  evil 
nature,  or  wrongful  disposition  to  harm  or  injure  another  in  his  person 
or  property.     Bishop  Cr.  Law,  supra  ;  Cora.  v.  Adams,  supra. 

The  distinction  between  the  two  classes  of  acts  is  well  stated  in  19 
Am.  &  Eng.  Enc.  (2nd  ed.),  at  p.  705:  "An  offence  malum  in  se  is 
one  which  is  naturally  evil,  as  murder,  theft,  and  the  like.  Offences  at 
common  law  are  generally  mahcm  in  se.  An  offence  malum  prohibi- 
tum, on  the  contrary,  is  not  naturally  an  evil,  but  becomes  so  in 
consequence  of  being  forbidden." 

We  do  not  hesitate  to  declare  that  the  oflfence  of  the  defendant  in 
hunting  pn  the  land  without  written  permission  of  the  owner  was 
malum,  prohibitum.,  and  the  special  verdict  having  found  that  the  act 
in  which  the  defendant  was  engaged  was  not  in  itself  dangerous  to 
human  life,  and  negatived  all  idea  of  negligence,  we  hold  that  the  case 
is  one  of  excusable  homicide,  and  the  defendant  should  be  declared  not 
guilty. 

We  are  referred  b}'  the  Attorney-General  to  East's  Pleas  of  the 
Crown,  and  Hale's  Pleas  of  the  Crown,  as  authorities  against  this 
position.  We  would  be  slow  indeed  to  hold  that  the  law  differed  from 
what  these  eminent  authors  declared  it  to  be  in  their  da}'  and  time,  nor 
are  we  required  to  do  so,  for  a  careful  examination  of  their  writings 
will,  we  think,  confirm  the  views  expressed  by  the  court.  My  Lord 
Hale  does  say  in  volume  1,  p.  39,  that  "  If  a  man  do  ex  intentione  an 
unlawful  act,  tending  to  the  bodily  hurt  of  an}-  person,  as  by  striking  or 
beating  him,  though  he  did  not  intend  to  kill  him,  but  the  death  of  the 
part}'  struck,  follow  thereby  within  the  year  and  day  ;  or  if  he  strike  at 
one  and  missing  him  kill  another  whom  he  did  not  intend,  this  is  felony 
and  homicide,  and  not  casualty  or  ^;er  infortunium.^^  "  So  it  is,  if  he 
be  doing  an  unlawful  act  thougli  not  intending  bodily  harm  to  any  per- 
son, as  throwing  a  stone  at  another's  horse,  if  it  hit  a  person  and  kill 


296  STATE    V.    HORTON.  [CHAP.  IV. 

him,  this  is  felon}'  and  homicide,  and  not  per  infortunium,  for  the  act 
was  voluntary,  though  the  event  was  not  intended,  and  therefore  the 
act  itself  being  unlawful,  he  is  criminally  guilty  of  the  consequence  that 
follows." 

But  this  author  says  in  treating  of  the  same  subject,  at  pp.  475,  476  : 
"  So  if  A  throws  a  stone  at  a  bird,  and  the  stone  striketh  and  killeth 
another  to  whom  he  intended  no  harm,  it  is  per  infortuniimi,  but  if  he 
had  thrown  the  stone  to  kill  the  poultr}'  or  cattle  of  B,  and  the  stone 
hits  and  kills  a  bystander,  it  is  manslaughter  because  the  act  was  un 
lawful;  but  not  murder  because  he  did  not  maliciously  or  with  intent 
to  hurt  tlie  bystander.  .  .  .  By  the  statute  of  33  Henry  VIII,  chap.  6, 
no  person  not  having  lands,  etc.,  of  the  yearly  value  of  one  hundred 
pounds  per  annum  may  keep  or  shoot  a  gun,  upon  pain  of  forfeiture  of 
ten  pounds.  Suppose,  therefore,  such  a  person,  not  qualified,  shoot 
with  a  gun  at  a  bird  or  at  crows,  and  b}'  mischance  it  kills  a  bystander, 
by  the  breaking  of  the  gun  or  some  other  accident,  that  in  another  case 
would  have  amounted  onh'  to  chance-raedle\',  this  will  be  no  more  than 
chance-medle}'  in  him  ;  for  though  the  statute  prohibits  him  to  keep  or 
shoot  a  gun,  yet  the  same  was  but  mahnn  prohibitum,  and  that  only 
under  a  penalty,  and  will  not  enhance  the  effect  beyond  its  nature." 

Mr.  East,  while  he  gives  an  instance  which  apparently  supports  the 
view  of  the  State,  in  treating  further  on  the  subject  in  volume  1,  p.  255, 
says:  ''Homicide  in  the  prosecution  of  some  act  or  purpose  criminal 
or  unlawful  in  itself,  wherein  death  ensues  collaterally  to  or  beside  the 
principal  intent;  I  say  collaterally  to  or  beside  the  principal  intent  in 
order  to  distinguish  this  kind  of  homicide  from  that  before  treated  of 
under  the  general  head  of  malice  aforethought,  where  the  immediate 
and  leading  purpose  of  the  mind  was  destruction  to  another.  And  first, 
it  is  principally  to  be  observed  that  if  the  act  on  which  death  ensued  be 
malum  in  se,  it  will  be  murder  or  manslaughter  according  to  the  cir- 
cumstances ;  if  done  in  the  prosecution  of  a  felonious  intent,  however, 
the  death  ensued  against  or  beside  the  intent  of  the  part}',  it  will  be 
murder  ;  but  if  the  intent  went  no  furtlier  than  to  commit  a  bare  tres- 
pass, it  will  be  manslaughter.  As  where  A  shoots  at  the  poultry  of  B, 
and  by  accident  kills  a  man  ;  if  his  intent  were  to  steal  the  poultry, 
which  must  be  collected  from  circumstances,  it  will  be  murder  by  reason 
of  that  felonious  intent ;  but  if  it  were  done  wantonly  and  without  that 
intent,  it  will  be  barel}'  manslaughter.  A  whips  a  horse  on  which  B  is 
riding,  whereupon  the  horse  springs  out  and  runs  over  a  child  and  kills 
it;  this  is  manslaughter  in  A  and  misadventure  in  B."  And  again,  at 
page  257  :  "  So  if  one  be  doing  an  unlawful  act,  though  not  intending 
bodily  harm  to  any  person,  as  throwing  at  another's  horse,  if  it  hit  a 
person  and  kill  him,  it  is  manslaughter.  Yet  in  each  case  it  seems  that 
the  guilt  would  rather  depend  on  one  or  other  of  these  circumstances  ; 
either  that  the  act  might  probabl}'  breed  danger  or  that  it  was  done 
with  a  mischievous  intent." 

So  we  have  it,  that  both  Sir  Matthew  Hale  and  Mr.  East,  to  whom 


SECT.  II.]  STATE    V.    HORTOX.  297 

we  were  referred  as  supporting  the  claim  of  guilt,  declared  that  the  act 
must  be  malum  hi  se,  and  the  instances  given  b}'  them  show  that  these 
writers  had  this  qualification  in  mind  whenever  thej'  state  the  doctrine 
in  more  general  terms. 

Sir  William  Blackstone  also  says  in.voliune  4,  pp.  192,  193:  "And 
in  general  when  an  involuntary  killing  happens  in  consequence  of  an 
unlawful  act,  it  will  be  either  murder  or  manslaughter,  according  to  the 
nature  of  tlie  act  wliich  occasions  it.  If  it  be  in  prosecution  of  a 
felonious  intent,  or  its  consequences  naturally  tended  to  bloodshed,  it 
will  be  murder;  but  if  no  more  was  intended  than  a  mere  civil  trespass, 
it  will  be  manslaughter"  —  citing  Foster's  Criminal  Law.  We  take  it 
that  the  distinguished  commentator  must  have  intended  only  such  civil 
trespasses  as  involve  an  element  malum  in  se,  as  he  cites  Foster's 
Criminal  Law,  and  this  author,  as  we  have  seen,  states  the  qualification 
suggested. 

Again,  we  are  cited  by  the  State  to  an  instance  put  b}'  East  at 
p.  269  :  "  But  though  the  weapons  be  of  a  dangerous  nature  yet  if  the}- 
be  not  directed  by  the  person  using  them  against  each  other,  and  so  no 
danger  to  be  reasonably  apprehended,  and  if  death  casually  ensue,  it  is 
but  manslaughter ;  as  if  persons  be  shooting  at  game,  or  butts,  or  any 
other  lawful  object,  and  a  bystander  be  killed.  And  it  makes  no  differ- 
ence with  respect  to  game  whether  the  party  be  qualified  or  not,  but  if 
the  act  be  unlawful  in  itself,  as  shooting  at  deer  in  another's  park  with- 
out leave,  tliough  in  sport  and  without  any  felonious  intent,  whereb}'-  a 
bystander  is  killed,  it  will  be  manslaughter ;  but  if  the  owner  had  given 
leave  or  the  party  had  been  shooting  in  his  own  park,  it  would  only 
have  been  misadventure,"  Lord  Hale,  at  page  475,  gives  the  same 
instance.  And  it  is  urged  that  this  instance  is  exactly  similar  to  the 
one  before  us,  but  not  so. 

According  to  Sir  William  Blackstone,  in  his  Commentaries,  book  2, 
p.  415  :  ''  For  sometime  prior  to  the  ISTorman  Conquest,  every  free- 
holder had  the  full  liberty  of  sporting  upon  his  own  territories,  provided 
he  abstained  from  the  king's  forests,  as  is  fully  expressed  in  the  laws 
of  Canute  and  Edward  the  Confessor.  Cuique  enlm  in  proprio  fundo 
quamlihet  feram  quoquo  modo  venari  permisstim."  And  further  on  it 
is  said:  "That  if  a  man  shoots  game  on  another's  private  ground  and 
kills  it  there,  the  property  belongs  to  him  on  whose  ground  it  was 
killed.  The  property  arising  ratione  soli.  .  .  .  On  the  Norman  Con- 
quest, a  new  doctrine  took  place,  and  the  right  of  pursuing  and  taking 
all  beasts  of  chase  or  venary,  and  such  other  animals  as  were  accounted 
game,  was  then  held  to  belong  to  the  king,  or  to  such  onl}-  as  were 
authorized  under  him."  Again:  "But  if  the  king  reserve  to  himself 
the  forests  for  his  own  exclusive  diversion,  so  he  granted  from  time  to 
time  other  tracts  of  land  to  his  subjects  under  the  name  of  chases  or 
parks,  or  gave  them  license  to  make  such  in  their  own  parks.  And,  by 
the  common  law,  no  one  is  at  liberty  to  take  or  kill  any  beast  of  chase 
but  such  as  hath  an  ancient  chase  or  park."     In  Enc.  Britanaica  we 


298  STATE   V.    HORTON.  [CHAP.  IV. 

read  that  the  chases  or  parks  were  much  the  same,  except  that  the 
parks  were  enclosed,  having  a  tendency  to  make  the  game  contained 
therein  more  completely  and  exclusively  the  property  of  the  owner. 
Anyone  who  entered  them  was  a  trespasser,  and  in  shooting  tlie  game 
therein,  his  act  can  be  likened  to  that  of  the  case  put  by  Foster,  P^ast, 
and  Lord  Hale,  where  one  wantonly  shot  another's  chicken.  He  was 
engaged  in  the  effort  to  destroy  another's  property,  and  the  act  could 
well  be  considered  malum  in  se.  But  not  so  here.  We  have  never 
transplanted  to  this  country  either  the  Saxon  or  Norman  theory  as  to 
the  right  to  take  and  appropriate  game.  Here,  it  is  considered  the 
property  of  the  cai)tor,  except  perhaps  in  the  case  of  bees. 

It  is  said  in  Cooley  on  Torts:  ''As  regards  beasts  of  chase,  the 
English  law  is  that  if  a  hunter  shoots  and  ca[)tures  a  beast  on  the  land 
of  another,  the  property  is  in  him  as  in  the  owner  of  the  land.  Under 
the  civil  law,  the  property  passed  to  the  captor.  And  such  is  believed 
to  be  the  recognized  rule  in  America,  even  where  tlie  cai)tare  has  been 
effected  by  means  of  a  trespass  on  another's  land."  State  v.  House, 
65  N.  C.  315. 

The  act  of  the  defendant,  therefore,  was  not  in  the  eff"ort  to  destroy 
another's  property,  but  was  strictly  maluin  prohibitum.  State  v.  Vines, 
93  N.  C.  493,  and  State  v.  Dorsey,  118  Ind.  167,  are  cases  apparently 
opposed  to  our  present  decision,  but  neither  is  really  so.  In  State  v. 
Vines  the  sport  was  imminently  dangerous,  amounting  to  recklessness ; 
and  in  State  v.  Dorsey  the  element  of  criminal  negligence  was  also 
present,  and  in  this  case  a  State  statute  governing  the  construction  was 
given  much  weight.  Neither  the  one  case  nor  the  other  required  any  crit- 
ical examination  of  the  doctrine  as  sometimes  stated,  that  an  uninten- 
tional homicide,  occasioned  when  in  the  commission  of  an  unlawful  act, 
is  manslaughter.  The  verdict  in  the  case  before  us  negatives  both  the 
elements  of  guilt  (present  in  these  two  cases),  declaring  that  the  act 
was  not  in  itself  dangerous  and  tliat  the  defendant  was  not  negligent. 

Again,  it  has  been  called  to  our  attention  that  courts  of  the  highest 
authority  have  declared  that  the  distinction  between  malum  prohibitum, 
and  malum  in  se  is  unsound,  and  has  now  entirely  disappeared.  Our 
own  court  so  held  in  Sharp  v.  Farmer,  20  N.  C.  255,  and  decisions  to 
the  same  effect  have  been  made  several  times  since.  Said  Ruffin,  C. 
J.,  in  Sharp  v.  Farmer :  "  The  distinction  between  an  act  malum  in  se 
and  one  malum  prohibitum  was  never  sound  and  is  entirely  disregarded, 
for  the  law  would  be  false  to  itself  if  it  allowed  a  party  through  its  tri- 
bunals to  derive  advantage  from  a  contract  made  against  the  intent  and 
express  provisions  of  the  law."  It  will  be  noted  that  this  decision  was 
on  a  case  involving  the  validity  of  a  contract,  and  the  principle  there 
establislied  is  undoubtedly  correct.  The  fact,  however,  that  the  judge 
who  delivered  the  opinion  uses  the  words  "  was  never  sound,"  and  that 
other  opinions  to  the  same  effect  use  the  words  "  has  disappeared," 
shows  that  the  distinction  has  existed ;  and  it  existed  too  at  a  time 
when  this  feature  in  the  law  of  homicide  was  established.     And  we  are 


SECT.  II. J 


STATE    V.   HORTON.  299 


well  assured  that  because  the  courts,  in  administering  the  law  on  the 
civil  side  of  the  docket,  have  come  to  the  conclusion  that  a  principle 
once  established  is  unsound  and  should  be  rejected,  this  should  not  have 
the  effect  of  changing  the  character  of  an  act  from  innocence  to  guilt, 
which  had  its  status  fixed  when  the  distinction  was  recognized  and 
enforced. 

It  was  further  suggested  that  the  homicide  was  one  of  the  very  results 
which  the  statute  was  designed  to  prevent,  and  to  excuse  the  defendant 
would  be  contrary  to  the  policy  of  the  act.  But  this  can  hardly  be 
seriously  maintained.  It  will  be  noted  that  it  was  not  the  owner  of  the 
land  who  was  killed,  but  the  defendant's  comrade  in  the  hunt;  and  of  a 
certaintv,  if  our  Legislature  thought  that  conduct  like  that  of  the  de- 
fendant was  dangerous  and  the  statute  was  designed  to  protect  human 
life,  some  other  penalty  would  have  been  imposed  than  a  fine  of  "  not 
less  than  five  dollars  and  not  more  than  ten."  It  is  more  reasonable  to 
conclude  that  the  act  in  its  purpose  was  designed  to  prevent  and  sup- 
press petty  trespasses  and  annoyances,  such  as  leaving  open  gates, 
throwing  down  fences,  treading  over  crops,  etc. 

The  special  verdict  having  established  that  the  act  of  the  defendant 
was  entirely  accidental,  it  is  a  relief  that  we  can  declare  him  innocent 
in  accordance  with  accepted  doctrine,  and  that  in  the  case  at  bar  the 
law  can  be  administered  in  mercy  as  well  as  justice.  Quoting  again 
from  that  eminent  judge  and  humane  and  enliglitened  man.  Sir  Michael 
Foster:  "And  where  the  rigor  of  law  bordereth  upon  injustice,  mercy 
should,  if  possible,  interpose  in  the  administration.  It  is  not  the  part 
of  the  judges  to  be  perpetually  hunting  after  forfeitures,  where  the 
heart  is  free  from  guilt.  They  are  ministers  appointed  by  the  Crown 
for  the  ends  of  public  justice,  and  should  have  written  on  their  hearts 
the  solemn  engagement  His  Majesty  is  under  to  cause  law  and  justice 
in  mercy  to  be  executed  in  all  his  judgments."  We  know  that  in  this 
spirit  the  judge  below  dealt  with  the  defendant  and  his  cause  ;  for 
though  the  judgment  of  His  Honor  impelled  him  to  the  conclusion  of 
guilt,  he  imposed  the  lightest  punishment  permissible  for  the  offence. 

There  was  error  in  holding  the  defendant  guilty,  and,  on  the  facts 
declared,  a  verdict  of  not  guilty  should  be  directed  and  the  defendant 
discharged. 

Reversed. 

Walker,  J.,  concurs  in  result  onlyt 


300  COMMONWEALTH    V.   MINK.  [CHAP.   IV. 


COMMONWEALTH   v.  MINK. 
Supreme  Judicial  Court  of  Massachusects.     1877. 

[Reported  123  Massachusetts,  422.] 

Indictment  for  the,  murder  of  Charles  Rieker  at  Lowell,  in  the  county 
of  Middlesex,  on  August  31 ,  1876.  Trial  before  Ames  and  Morton,  JJ., 
who  allowed  a  bill  of  exceptions  in  substance  as  follows  :  — 

It  was  proved  that  Charles  Kicker  came  to  his  death  by  a  shot  from 
A  pistol  in  the  hand  of  the  defendant.  The  defendant  introduced  evi- 
dence tending  to  show  that  she  had  been  engaged  to  i)e  married  to 
Rieker  ;  that  an  interview  was  had  between  them  at  lier  room,  in  the 
course  of  which  he  expressed  his  intention  to  break  off  the  engagement 
and  abandon  her  entirely  ;  that  she  thereupon  went  to  her  trunk,  took 
a  pistol  from  it,  and  attempted  to  use  it  upon  herself,  with  the  intention 
of  taking  her  own  life  ;  that  Rieker  then  seized  her  to  prevent  her  from 
accomplishing  that  purpose,  and  a  struggle  ensued  betw^een  them  ;  and 
that  in  the  struggle  the  pistol  was  accidentally  discharged,  and  in  that 
way  the  fatal  wTjund  inflicted  upon  him. 

The  jury  were  instructed  on  tliis  point  as  follows:  "If  you  believe 
the  defendant's  story,  and  that  she  did  put  the  pistol  to  her  head  with 
the  intention  of  committing  suicide,  she  was  al)out  to  do  a  criminal 
and  unlawful  act,  and  that  which  she  had  no  right  to  do.  It  is  true, 
undoubtedly,  that  suicide  cannot  be  punished  by  anv  proceeding  of  the 
courts,  for  the  reason  that  the  person  who  kills  himself  has  placed  him- 
self be3'ond  the  reach  of  justice,  and  nothing  can  be  done.  But  the 
law,  nevertheless,  recognizes  suicide  as  a  criminal  act,  and  the  attempt 
at  suicide  is  also  criminal.  It  would  be  the  dutv  of  any  bystander  who 
saw  such  an  attempt  about  to  be  made,  as  a  matter  of  mere  humanity, 
to  interfere  and  try  to  prevent  it.  And  the  rule  is,  that  if  a  homicide 
is  produced  by  the  doing  of  an  unlawful  act,  although  the  killing  was 
the  last  thing  that  the  person  about  to  do  it  had  in  his  mind,  it  would 
be  an  unlawful  killing,  and  the  person  would  incur  the  responsibilit}- 
which  attaches  to  the  crime  of  manslaughter. 

"  Then  you  are  to  inquire,  among  other  things,  and  if  3'ou  reach  that 
part  of  the  case,  Did  this  woman  attempt  to  commit  suicide  in  the  pres- 
erjce  of  Rieker?  and,  if  she  did,  I  shall  have  to  instruct  you  that  he  would 
have  a  right  to  interfere  and  try  to  prevent  it  by  force.  He  would  have 
a  perfect  right,  and  I  think  I  might  go  further  and  sa}-  that  it  would  be 
his  duty,  to  take  the  pistol  away  from  her  if  he  possibh'  could,  and  to 
use  force  for  that  purpose.  If  then,  in  the  course  of  the  struggle  on 
his  part  to  get  possession  of  the  pistol  to  prevent  the  person  from  com- 
mitting suicide,  the  pistol  went  off  accidentall}',  and  he  lost  his  life  in 
that  wa}',  it  would  be  a  case  of  manslaughter,  and  it  would  not  be  one 
of  those  accidents  which  would  excuse  the  defendant  from  being  held 
criminally  accountable. 


SECT.  11.]  COMMONWEALTH   V.    MINK.  301 

"  Did  she  get  into  such  a  condition  of  despondency  and  disappoint- 
ment that  she  was  trying  to  commit  suicide,  and  was  about  to  do  so?' 
If  that  was  her  condition,  if  she  was  mailing  tliat  attempt,  and  he  inter- 
fered to  prevent  it  and  got  injured  by  an  accidental  discharge  of  tlie 
pistol,  it  would  be  manslaughter."  The  jur}-  returned  a  verdict  of  gudty 
of  manslaughter  ;  and  the  defendant  alleged  exceptions. 

Gray,  C.  J.-^  The  life  of  every  human  being  is  under  the  protection 
of  the  law,  and  cannot  be  lawfully  taken  by  himself,  or  by  another  with 
his  consent,  except  by  legal  authority.  By  the  common  law  of  Eng- 
land, suicide  was  considered  a  crime  against  the  laws  of  God  and  man, 
the  lands  and  chattels  of  the  criminal  were  forfcitctl  to  the  King,  his 
body  had  an  ignominious  burial  in  the  highway.  ;iiid  lie  was  deemed  a 
murderer  of  himself  and  a  Mon,felo  de  se.  Hales  v.  Petit,  Plowd.  253, 
261  ;  3  Inst.  54;  1  Hale  P.  C.  411-417;  2  Hale  P.  C.  62;  1  Hawk, 
c.  27  ;  4  Bl.  Com.  95,  189,  190.  '•'■  He  who  kills  another  upon  his  desire 
or  command  is,  in  the  judgment  of  the  law,  as  much  a  murderer  as  if 
he  had  done  it  merely  of  his  own  head."  1  Hawk.  c.  27,  s.  6.  One 
who  persuades  another  to  kill  himself,  and  is  present  when  he  does  so, 
is  guilty  of  murder  as  a  principal  in  the  second  degree  ;  and  if  two 
mutually  agree  to  kill  themselves  together,  and  the  means  employed  to 
produce  death  take  effect  upon  one  only,  the  survivor  is  guilty  of  the 
murder  of  the  one  who  dies.  Bac.  Max.  reg.  15  ;  Rex  v.  Dyson,  Russ. 
&  Ry.  523  ;  Regina  v.  Alison,  8  Car.  &  P.  418.  One  who  encourages 
another  to  commit  suicide,  but  is  not  present  at  the  act  which  causes 
the  death,  is  an  accessory  before  the  fact,  and  at  common  law  escaped 
punishment  only  because  his  principal  could  not  be  first  tried  and  con- 
victed. Russell's  case,  1  Mood}-,  356  ;  Regina  v.  Leddington,  9  Car. 
&  P.  79.  And  an  attempt  to  commit  suicide  is  held  in  England  to  be 
punishable  as  a  misdemeanor.  Regina  v.  Dood}*,  6  Cox  C.  C.  463  ; 
Regina  v.  Burgess,  Leigh  &  Cave,  258  ;  s.  c.  9  Cox  C.  C.  247. 

Suicide  has  not  ceased  to  be  unlawful  and  criminal  in  this  Common- 
wealth by  the  simple  repeal  of  the  Colony  Act  of  1660  hy  the  St.  of 
1823,  c.  143,  which  (like  the  corresponding  St.  of  4  G.  IV.  c.  52,  enacted 
b}'  the  British  Parliament  within  a  year  before)  may  well  have  had  its 
origin  in  consideration  for  the  feelings  of  innocent  surviving  relatives ; 
nor  by  the  briefer  directions  as  to  the  form  of  coroner's  inquests  in  the 
Rev.  Sts.  c.  140,  s.  8,  and  the  Gen.  Sts.  c.  175,  s.  9,  which  in  this,  as  in 
most  other  matters,  have  not  repeated  at  length  the  forms  of  legal  pro- 
ceedings set  forth  in  the  statutes  codified  ;  nor  b}-  the  fact  that  the 
Legislature,  having  in  the  general  revisions  of  the  statutes  measured 
the  degree  of  punishment  for  attempts  to  commit  oflTences  by  the  punish- 
ment prescribed  for  each  offence  if  actually  committed,  has,  intentionally 
or  inadvertently,  left  the  attempt  to  commit  suicide  without  punishment, 
because  the  completed  act  would  not  be  punished  in  any  manner.  Rev. 
Sts.  c.  133,  s   12  ;   Gen.  Sts.  c.  168,  s.  8  ;   Commonwealth  v.  Dennis, 

1  Arguments  of  counsel  and  part  of  the  opinion  are  omitted. 


302  NEGLIGENCE.  [CHAP.  IV. 

105  Mass.  162.    After  all  these  changes  in  the  statutes,  the  point  decided 
■  in  Bowen's  case  was  ruled  iu  tlie  same  way  by  Chief  Justice  Bigelow 
and  Justices  Dewey,  Metcalf,  and  Chapman,  m  a  case  which  has  not 
been  reported.     Commonwealth   i\  Pratt,  Berkshire,  1862. 

Since  it  has  been  provided  by  statute  that  '"any  crime  punishable  b}- 
death  or  imprisonment  in  the  state  prison  is  a  felony,  and  no  other 
crime  shall  be  so  considered,"  it  may  well  be  that  suicide  is  not  techni- 
cally a  felony  in  this  Commonwealth.  Gen.  Sts.  c.  168,  s.  1  ;  St.  18.52, 
c.  37,  s.  1.  But  being  unlawful  and  criminal  as  malum  in  se,  any 
attempt  to  commit  it  is  likewise  unlawful  and  criminal.  Every  one  has 
the  same  right  and  duty  to  interpose  to  save  a  life  from  being  so  unlaw- 
fully and  criminally  taken  that  he  would  have  to  defeat  an  attempt 
unlawfuU}' to  take  the  life  of  a  third  person.  Fairfax,  J.,  in  22  E.  IV. 
45,  pi.  10  ;  Marler  v.  Ayliffe,  Cro.  Jac.  134  ;  2  Rol.  Ab.  559  ;  1  Hawk, 
c.  60,  s.  23.  And  it  is  not  disputed  that  any  person  who,  in  doing  or 
attempting  to  do  an  act  which  is  unlawful  and  criminal,  kills  another, 
though  not  intending  his  death,  is  guilty  of  criminal  homicide,  and,  at 
the  least,  of  manslaughter. 

The  only  doubt  that  we  have  entertained  in  this  case  is,  whether  the 
act  of  the  defendant,  in  attempting  to  kill  herself,  was  not  so  malicious, 
in  the  legal  sense,  as  to  make  the  killing  of  another  person,  in  the 
attempt  to  carry  out  her  purpose,  murder,  and  whether  the  instructions 
given  to  the  jury  were  not  therefore  too  favorable  to  the  defendant. 

Exceptions  overruled. 


SECTION  III. 

The  mens  rea: 
Negligence. 

Foster,  Crown  Law,  262.  It  is  not  sufficient  that  the  act  upon  which 
death  ensueth  be  lawful  or  innocent,  it  must  be  done  in  a  proper  manner 
and  with  due  caution  to  prevent  mischief.     Parents,  master,  and  other 


SECT.  III.]  NEGLIGENCE,  303 

persons  having  authority  in  for o  domestico,  may  give  reasonable  correc> 
tion  to  those  under  tlieir  care  ;  and  if  death  ensueth  without  their  fault, 
it  will  be  no  more  than  accidental  death.  But  if  the  correction  exceedeth 
the  bounds  of  due  nioderatiiMi,  either  in  the  measure  of  it  or  in  the  instru- 
ment made  use  of  for  that  purpose,  it  will  be  either  murder  or  manslaughter 
according  to  the  circumstances  of  the  case.  If  with  a  cudgel  or  other 
thing  not  likely  to  kill,  though  improper  for  the  purpose  of  correction, 
manslaughter.  If  with  a  dangerous  weapon  likely  to  kill  or  maim,  due 
regard  being  always  had  to  the  age  and  strength  of  the  part}',  murder. 

This  rule  touching  due  caution  ought  to  be  well  considered  by  all 
persons  following  their  lawful  occupations,  especially  such  from  wlience 
danger  may  probably  arise. 

Workmen  throw  stones,  rubbish,  or  other  things  from  an  house  in  the 
ordinary  course  of  their  business,  by  which  a  person  underneath  hap- 
peneth  to  be  killed.  If  thej'  look  out  and  give  timely  warning  beforehand 
to  those  below,  it  will  be  accidental  death.  If  without  such  caution,  it 
will  amount  to  manslaughter  at  least.  It  was  a  lawful  act,  but  done  in 
an  improper  manner. 

I  need  not  state  more  cases  by  way  of  illustration  under  this  head  ; 
these  are  sufficient.  But  I  cannot  pass  over  one  reported  by  Keljng 
(Kel.  41),  because  I  think  it  an  extremely'  hard  case,  and  of  very  exten- 
sive influence.  A  man  found  a  pistol  in  the  street,  which  he  had  reason 
to  believe  was  not  loaded,  having  tried  it  with  the  rammer;  he  carried 
it  home  and  showed  it  to  his  wife  ;  and  she  standing  before  him  he 
pulled  up  the  cock,  and  touched  the  trigger.  The  pistol  went  off  and 
killed  the  woman.    This  was  ruled  manslaughter. 

It  appeareth  that  the  learned  editor-^  was  not  satisfied  with  the  judg- 
ment. It  is  one  of  the  points  he  in  the  preface  to  the  report  recom- 
mendeth  to  farther  consideration. 

Admitting  that  the  judgment  was  strictly  legal,  it  was,  to  say  no 
better  of  it,  suminum  Jus. 

The  law  in  these  cases  doth  not  require  the  utmost  caution  that  can 
be  used  ;  it  is  sufficient  that  a  reasonable  precaution,  what  is  usual  and 
ordinary  in  the  like  cases,  be  taken.  In  the  case  just  mentioned  of 
workmen  throwing  rubbish  from  buildings,  the  ordinary  caution  of  look- 
ing out  and  giving  warning  by  outer}'  from  above  will  excuse,  though 
doubtless  a  better  and  more  effectual  warning  might  have  been  given. 
But  this  excuseth,  because  it  is  what  is  usualh'  given,  and  hath  been 
found  by  long  experience,  in  the  ordinary  course  of  things,  to  answer 
the  end.  The  man  in  the  case  under  consideration  examined  the  pistol 
in  the  common  way  ;  perhaps  the  rammer,  which  he  had  not  tried  before, 
was  too  short  and  deceived  him.  But  having  used  the  ordinary  caution, 
found  to  have  been  effectual  in  the  like  cases,  he  ought  to  have  beeu 
excused. 

1  Chief  Justice  Holt. 


304  REGINA    V.    CHAMBERLAIN.  [CHAP.  IV. 

1  have  been  the  longer  upon  this  case,  because  accidents  of  this 
lamentable  kind  may  be  the  lot  of  the  wisest  and  the  best  of  mankind, 
and  most  commonly  fall  among  the  nearest  friends  and  relations ;  and 
in  such  a  case  the  forfeiture  of  goods,  rigorously  exacted,  would  be 
heaping  affliction  upon  the  head  of  the  afflicted,  and  galling  an  heart 
already  wounded  past  cure.  It  would  even  aggravate  the  loss  of  a 
brother,  a  parent,  a  child,  or  wife,  if  such  a  loss  under  such  circum- 
stances is  capable  of  aggravation. 

I  once  upon  the  circuit  tried  a  man  for  the  death  of  his  wife  b}-  the 
like  accident.  Upon  a  Sunday  morning  the  man  and  his  wife  went  a 
mile  or  two  from  home  with  some  neighbors  to  take  a  dinner  at  the 
house  of  their  common  friend.  He  carried  his  gun  with  him,  hoping 
to  meet  with  some  diversion  by  the  wa}' ;  but  before  he  went  to  dinner 
he  discharged  it,  and  set  it  up  in  a  private  place  in  his  friend's  house. 
After  dinner  he  went  to  church,  and  in  the  evening  returned  home  with 
his  wife  and  neighboi's,  bringing  his  gun  with  him,  which  was  carried 
into  the  room  where  his  wife  was,  she  having  brought  it  part  of  the  way. 
He  taking  it  up  touched  the  trigger,  and  the  gun  went  off  and  killed  his 
wife,  whom  he  dearly  loved.  It  came  out  in  evidence  that,  while  the 
man  was  at  church,  a  person  belonging  to  the  family  privatelj-  took  the 
gun,  charged  it  and  went  after  some  game  ;  but  before  tlie  service  at 
church  was  ended  returned  it  loaded  to  the  place  whence  he  took  it, 
and  where  the  defendant,  who  was  ignorant  of  all  that  had  passed, 
found  it,  to  all  appearance  as  he  left  it.  I  did  not  inquire  whether  the 
poor  man  had  examined  the  gun  before  he  carried  it  home  ;  but  being 
of  opinion  upon  the  whole  evidence,  that  he  had  reasonable  grounds  to 
believe  that  it  was  not  loaded,  I  directed  the  jury,  that  if  they  were  of 
the  same  opinion  they  should  acquit  him.    And  he  was  acquitted. 


REGINA   V.  CHAMBERLAIN. 
Hertford  Assizes.     1867. 

[Reported  10  Cox  C.  C.  486.] 

Indictment  for  manslaughter. 

The  prisoner  had  resided  for  many  3'ears  in  Hertford,  carrying  on  the 
business  of  a  lierbalist,  and  he  was  also  what  was  called  a  "  quack  doc- 
tor." The  deceased  woman  had  for  some  3'ears  a  tumor  on  her  shoulder, 
and  in  March,  18fi6,  she  consulted  the  prisoner,  who  gave  her  first  a 
mercurial  ointment,  to  which  no  objection  was  taken.  After  this,  how- 
ever, it  was  said  he  gave  her  a  different  ointment,  which  was  arsenical, 
and  this  it  was  suggested  had  caused  her  death  by  being  absorbed  into 
the  system.  The  case  for  the  prosecution  was  that  she  became  worse 
after  she  used  this  ointment,  that  is  to  sa}-,  in  August,  1866  ;  that  she 


SECT. III.]  REGINA   V.   CHAMBERLAIN.  305 

suffered  from  arsenical  s3'mptoms  ;  and  that  her  death,  which  happened 
in  September,  was  owing  to  this  cause.  It  was  not  disputed  tliat  she 
died  with  the  symptoms  of  arsenic,  nor  that  there  was  arsenic  in  the 
ointment  she  used  ;  the  real  question  in  the  case  was  whether  tliere  was 
'"culpable  negligence"  on  the  part  of  the  prisoner  in  giving  it  without 
due  precautions.  That  being  the  question  in  the  case,  it  turned  a  orood 
deal  upon  the  medical  evidence  as  to  the  use  of  arsenic  in  ointments. 
As  to  this  Dr.  Taylor  admitted  that  it  was  used  upon  the  Continent, 
and  that  it  had  been  used  in  this  country  until  within  the  last  thirt}' 
Aears,  when  he  said  it  was  discovered  that  it  was  absorbed  into  tlie  sys- 
tem, and  it  was  discontinued  in  this  country,  though  it  still  was  used 
upon  the  Continent.  The  foreign  practitioners,  he  said,  were  a  little 
more  given  to  a  bold  system  in  cases  apparently  hopeless,  and  a  little 
more  disposed  to  what  he  called  ''  heroic"  treatment  —  that  is  to  say, 
treatment  in  which  the  medical  practitioner  for  the  sake  of  the  patient 
runs  some  risk  —  than  our  English  practitioners,  who,  he  intimated, 
were  rather  more  cautious  in  such  cases.  Another  point  on  which  the 
case  turned  was  as  to  the  prisoner  not  having  warned  the  deceased  of 
the  necessary  effect  of  the  arsenic  when  absorbed  into  the  system.  It 
did  not  api)ear  that  he  had  given  any  particular  directions  beyond  tell- 
ing her  to  "rub  some  of  the  ointment  in  ;"  and  the  woman,  naturally 
thinking  that  the  more  she  rubbed  the  better,  had  rubbed  and  rubbed 
until  she  liad  absorbed  so  much  of  the  poison  that  she  died  ;  and  the 
prisoner  had  sold  her  another  box  without,  as  it  appeared,  making  any 
observation  as  to  the  effect  of  the  first. 

Parry,  Serjt.,  for  the  prisoner,  contended  that  it  was  a  case  of  a 
mere  blunder  or  error,  and  not  a  case  of  negligence  so  culpable  as  to 
be  criminal. 

Blackburn,  J.,  to  the  jurj'.  If  the  prisoner  by  culpable  negligence 
had  caused  the  death  of  the  deceased  woman,  he  was  guilty  of  man- 
slaughter ;  ])ut  the  mere  fact  that  death  had  occurred  through  mistake 
or  misfortune  would  not  be  enough,  or  no  medical  man  would  be  safe. 
There  must,  however,  be  competent  knowledge  and  care  in  dealing  with 
a  dangerous  drug,  and  if  the  man  either  was  ignorant  of  the  nature  of 
the  drug  he  used  or  was  guilty  of  gross  want  of  care  in  its  use,  there 
would  be  criminal  culpability.  In  the  one  case  there  would  be  culpable 
rashness  in  using  so  dangerous  a  drug  in  ignorance  of  its  operation  ;  in 
the  otlier  case  there  would  be  culpable  want  of  care  or  culpable  care- 
lessness in  the  use  of  the  drug ;  and  in  either  case  that  would  be  culpa- 
ble and  criminal  negligence,  which  would  justify  a  conviction,  supposing 
the  jur}'  were  satisfied  that  the  death  arose  from  the  arsenic.  The  first 
question  was,  whether  the  death  was  caused  b}-  the  arsenic  administered 
by  the  prisoner ;  upon  which,  however,  he  thought  the  evidence  very 
strong.  The  real  question  would  be  whether  there  was  culpable  negli- 
gence, which  resolved  itself  into  the  two  questions  he  had  explained. 
He  could  not  define  the  nature  of  "  culpable  negligence"  otherwise  than 
as  he  had  described  it.     It  was  a  question  for  the  jurj-,  for  it  was  a 


306  REGINA  V.    SALMON.  [CHAP.  IV. 

question  of  degree.  It  was  a  question  of  more  or  less,  and  it  could  not 
be  defined.  All  the  direction  he  could  give  them  was  that  if  the  prisoner 
administered  the  arsenic  without  knowing  or  taking  tlie  pains  to  find  out 
what  its  effect  would  be,  or  if  knowing  this,  he  gave  it  to  the  patient  to 
be  usL-d  without  giving  her  adequate  directions  as  to  its  use,  there  would 
in  eitlier  view  of  tiie  case  be  culpable  negligence,  and  the  prisoner  ought 
to  be  convicted  :  but  if  otherwise,  there  would  not  be  such  negligence, 
and  liie  prisoner  oiiglit  to  be  acquitted.  The  most  serious  part  of  the 
case  was  in  the  apparent  absence  of  caution  or  directions  to  the  woman 
as  to  the  use  of  the  arsenical  ointment,  the  effect  of  which,  as  was  well 
known,  was  tliat  it  would  be  absorbed  into  the  system  so  as  to  cause 
death.  It  was  said  that  foreign  doctors  used  it,  but  if  so  it  might  be 
presumed  that  they  watched  its  use  with  care.  It  appeared  to  him  that 
a  medical  man  who  should  administer  such  a  drug  or  allow  a  patient  to 
apply  it  without  taking  any  care  to  observe  its  effects  or  guard  against 
them,  would  be  gravely  wanting  in  due  care.  Whether  under  the  cir- 
cumstances it  amounted  to  culpable  negligence  was,  he  repeated,  for 
the  jury.  J^ot  guilty.^ 


REGINA   V.  SALMON. 
Ckown  Case  Reserved.     1880. 

[Reported  14  Cox  C.  C.  494.] 

Case  reserved  for  the  opinion  of  this  court  b}'  Lord  Coleridge,  C.  J., 
at  the  Summer  Assizes  at  Wells,  I88O0 

The  three  prisoners  were  tried  for  tlie  manslaughter  of  William  Wells, 
a  little  boy  often  years  old.  The  prisoners  went  into  a  field,  and  each 
fired  a  shot  from  a  rifle  at  a  target.  One  of  the  shots  killed  the  deceased, 
who  was  at  the  time  in  a  tree  in  his  father's  garden,  distant  about  four 
hundred  yards  from  the  spot  where  the  shot  was  fired.  The  rifle  was 
sighted  for  nine  hundred  and  fifty  yards,  and  would  probably  be  deadly 
at  a  mile.  It  did  not  appear  which  one  of  the  prisoners  fired  the  fatal 
shot.2 

No  counsel  appeared  to  argue  on  behalf  of  the  prisoners. 

Norris  for  the  prosecution.  The  prisoner  who  fired  the  fatal  shot 
was  clearly  guilty  of  manslaughter,  but  the  evidence  of  his  identit}-  not 
being  clear,  the  rule  that  all  persons  engaged  in  a  common  enterprise 
are  jointly  liable  will  apply.  All  the  prisoners  went  into  the  field  for 
a  common  purpose,  rifle  practice  ;  and  it  was  their  dutv  to  take  all 
proper  precautions  to  [)revent  any  danger  to  other  persons.  The  plan 
attached  to  the  case  shows  that  they  fired  across  three  highways,  and 

1  Ace.  Eeg  V.  Macleod,  12  Cox  C.  C.  534;  State  v.  Hardister,  .38  Ark.  605.  — Ed. 

2  This  statement  of  the  case  is  condensed  from  the  report  of  Lord  Coleridge. 
—Ed. 


SECT.  III.]  REOINA    V.   NICIIOLLS.  307 

that  the}-  were  firing  too  near  to  the  neighboring  gardens,  in  one  of 
which  the  deceased  bo}'  was. 

Lord  Colekidge,  C  J.  I  am  of  opinion  that  the  conviction  was 
right  and  ought  to  be  affirmed.  If  a  person  does  a  thing  which  in  itself 
is  dangerous,  and  without  taking  proper  precautions  to  prevent  danger 
arising,  and  if  he  so  does  it  and  liiils  a  person,  it  is  a  criminal  act  as 
against  that  person.  That  would  make  it  clearly  manslaughter  as 
x'egards  the  prisoner  whose  shot  killed  the  boy.  It  follows  as  the  result 
of  the  culpable  negligence  of  this  one,  that  each  of  the  prisoners  is 
answerable  for  the  acts  of  the  others,  they  all  being  engaged  in  one 
common  pursuit. 

FiELW,  J.  I  am  of  the  same  opinion.  At  first  I  thought  it  was  ne- 
cessary to  show  some  duty  on  the  part  of  the  prisoners  as  regards  the 
boy,  but  I  am  now  satisfied  that  there  was  a  dut}'  on  the  part  of  the 
prisoners  towards  the  pul)lic  generally  not  to  use  an  instrument  likel}' 
to  cause  death  without  taking  due  and  proper  precautions  to  prevent 
injury  to  the  public.  Looking  at  the  character  of  the  spot  where  the 
firing  took  place,  there  was  sufficient  evidence  that  all  three  prisoners 
were  guilty  of  culpable  negligence  under  the  circumstances. 

LoPKS,  J.,  concurred. 

Stephen,  J.  I  am  of  opinion  that  all  three  prisoners  were  guilty  of 
manslaughter.  The  culpable  omission  of  a  duty  which  tends  to  preserve 
life  is  homicide  ;  and  it  is  the  duty  of  ever}-  one  to  take  proper  precau- 
tions in  doing  an  act  which  may  be  dangerous  to  life.  In  this  case  the 
firing  of  the  rifle  was  a  dangerous  act,  and  all  three  prisoners  were 
jointh-  responsible  foi-  not  taking  proper  precautions  to  prevent  the 
danger. 

Watkin  Williams,  J.,  concurred.  Conviction  affirined. 


KEGINA  V.   NICHOLLS. 

Stafford  Assizes.     1875. 
[Reported  13  Cox  C.  C.  75.] 

Prisoner  was  indicted  for  the  manslaughter  of  Charles  Nicholls. 

A.   Yoimg  prosecuted. 

The  prisoner  was  the  grandmother  of  the  deceased,  an  infant  of 
tender  years,  said  to  have  died  from  the  neglect  of  the  prisoner  to 
supply  it  with  proper  nourishment.  She  was  a  poor  woman,  and  in 
order  to  earn  her  livelihood  was  out  the  greater  part  of  the  day.  The 
deceased  was  the  child  of  the  prisoner's  daughter.  The  daughter  was 
dead,  and  therefore  the  prisoner  took  charge  of  the  child,  and  while 
away  from  home  left  it  to  the  sole  care  of  a  boy  of  nine  years.  The 
cause  of  death  was  emaciation,  probably  resulting  from  want  of  food 


308  EEGINA   V.    NICHOLLS.  [CHAP.  IV. 

The  facts  will  be  found  more  particularly  stated  in  the  summing  up  of 
tlie  learned  judge. 

At  the  close  of  the  case  for  the  prosecution,  Brett,  J.,  asked  what 
was  the  neglect  charged. 

A.  Yoioig.     Leaving  the  child  in  the  sole  custody  of  so  young  a  boy 
during  many  hours  of  the  da}'. 

Brett,  J.,  to  the  jury.  This  woman  is  charged  with  manslaughter 
under  somewhat  peculiar  circumstances.  She  was  the  grandmother  of 
the  deceased  infant,  and  not  bound  by  law  to  take  care  of  it.  She 
might  have  sent  the  child  to  the  workhouse,  but  did  not  do  so.  If  a 
grown  up  person  chooses  to  undertake  the  charge  of  a  human  creature, 
helpless  either  from  infancy,  simplicity,  lunacy,  or  other  infirmity,  he  is 
bound  to  execute  that  charge  without,  at  all  events,  vncked  negligence  ; 
and  if  a  person  who  has  chosen  to  take  charge  of  a  helpless  creature 
lets  it  die  by  wicked  negligence,  that  person  is  guilt}'  of  manslaughter.' 
Mere  negligence  will  not  do  ;  there  must  be  wicked  negligence,  that  is, 
negligence  so  great  that  you  must  be  of  opinion  that  the  prisoner  had 
a  wicked  mind,  in  the  sense  that  she  was  reckless  and  careless  whether 
the  creature  died  or  not.  We  must  judge  of  all  these  things  according 
to  the  state  and  condition  of  the  persons  concerned.  Here  was  an  old 
woman  left  in  a  difficult  position.  The  child  was  probably  illegitimate. 
Its  mother,  who  was  the  prisoner's  daughter,  had  died,  and  would  not 
probably  have  suckled  it  for  some  days  before  her  death.  The  child 
was  small  and  weakly.  It  might,  perhaps,  have  lived.  What,  however, 
was  the  prisoner  to  do?  It  is  said  that  she  had,  through  her  own  mis- 
conduct, fallen  into  bad  circumstances  ;  that  she  was  addicted  to  drink, 
and  that  her  furniture  had  been  seized.  She  was  out  all  day  collecting 
rags  and  bones.  What  ought  she  to  have  done  with  respect  to  the 
child  ?  The  prosecution  say  that  she  ought  to  have  sent  it  to  the  parish 
authorities.  Perhaps  she  ought.  But  she,  like  others,  might  be  full  of 
prejudice,  and  dislike  to  send  it  there.  So  her  omission  to  send  it  is 
not  sufficient ;  for,  as  I  have  pointed  out,  there  must  be  wicked  negli- 
gence on  her  part.  Then  she  must  go  out  to  work.  She  could  not  find 
any  one  else,  for  she  had  no  means,  so  she  got  a  son  of  nine  years  old 
to  look  to  the  infant.  She  may  have  been  very  careless,  but  the  ques- 
tion is,  was  she  wickedly  careless?  She  was  in  fault,  for  she  ought  not 
to  have  been  away  so  many  hours  at  a  time  ;  and  no  doubt  you  will 
think  that  it  was  that  that  caused  the  death  of  the  child.  The  boy  was 
careless,  but  it  appears  that  the  old  woman  certainly  did  have  food  in 
the  house.  Suppose  she  told  the  boy  to  feed  the  baby,  and  left  food 
wherewith  to  feed  it  ?  Still  she  would  be  careless,  for  she  ought  to 
(lave  returned  home  to  see  that  he  did  so.  It  is  very  right  that  this 
case  should  be  inquired  into,  and  that  the  neighbors  should  look  into 
it,  but  nevertheless  it  is  right  that  we  should  consider  the  circumstances 
of  the  prisoner  in  order  to  determine  whether  she  has  been  guilty  of 
such  carelessness  as  I  have  defined. 

Verdict,  Not  guilty. 


SECT.  III.]  COMMONWEALTH   V.    PIERCE.  309 

COMMONWEALTH  v.  PIERCE. 
Supreme  Judicial  Court  of  Massachusetts.     1884. 

[Reported  138  Mass.  165.] 

Holmes,  J.  The  defendant  has  been  found  guilty  of  manslaughter, 
on  evidence  that  he  publicly  practised  as  a  physician,  and,  being  called 
to  attend  a  sick  woman,  caused  her,  with  her  consent,  to  be  kept  in 
flannels  saturated  with  kerosene  for  three  days,  more  or  less,  by  reason 
of  which  she  died.  There  was  evidence  that  he  had  made  similar  appli- 
cations with  favorable  results  in  other  cases,  but  that  in  one  the  effect 
had  been  to  blister  and  burn  the  flesh  as  in  the  present  case. 

The  main  questions  which  have  been  argued  before  us  are  raised  by 
the  fifth  and  sixth  rulings  requested  on  behalf  of  the  defendant,  but 
refused  by  the  court,  and  by  the  instructions  given  upon  the  same 
matter.  The  fifth  request  was,  shortly,  that  the  defendant  must  have 
"  so  much  knowledge  or  probable  information  of  the  fatal  tendency  of 
the  prescription  that  [the  death]  may  be  reasonably  presumed  by  the 
jury  to  be  the  effect  of  obstinate,  wilful  rashness,  and  not  of  an  honest 
intent  and  expectation  to  cure."  The  seventh  request  assumes  the  law 
to  be  as  thus  stated.  The  sixth  request  was  as  follows  :  "If  the  de- 
fendant made  the  prescription  with  an  honest  purpose  and  intent  to 
cure  the  deceased,  he  is  not  guilty  of  this  offence,  however  gross  his 
ignorance  of  the  quality  and  tendency  of  the  remedy  prescribed,  or  of 
the  nature  of  the  disease,  or  of  both."  The  eleventh  request  was  sub- 
stantially similar,  except  that  it  was  confined  to  this  indictment. 

The  court  instructed  the  jury  that  "it  is  not  necessary  to  show  an 
evil  intent;"  that,  "if  by  gross  and  reckless  negligence  he  caused  the 
death,  he  is  guilty  of  culpable  homicide  ;  "  that  "  the  question  is  whether 
the  kerosene  (if  it  was  the  cause  of  the  death),  either  in  its  original 
application,  renewal,  or  continuance,  was  applied  as  the  result  of  fool- 
hard}'  presumption  or  gross  negligence  on  the  part  of  the  defendant ;  " 
and  that  the  defendant  was  "to  be  tried  b}-  no  other  or  higiier  stand- 
ard of  skill  or  learning  than  that  which  he  necessaril}'  assumed  in  treat- 
ing her ;  that  is,  that  he  was  able  to  do  so  without  gross  recklessness 
or  foolhardy  presumption  in  undertaking  it."  In  other  words,  that  the 
defendant's  duty  was  not  enhanced  by  any  express  or  implied  contract, 
but  that  he  was  bound  at  his  peril  to  do  no  grossly  reckless  act  when, 
in  the  absence  of  any  emergencv  or  other  exceptional  circumstances, 
he  intermeddled  with  the  person  of  another. 

The  defendant  relies  on  the  case  of  Commonwealth  v.  Thompson,  6 
Mass.  134,  from  which  his  fiftli  request  is  quoted  in  terms.  His  argu- 
ment is  based  on  another  quotation  from  the  same  opinion:  "To  con- 
stitute manslaughter,  the  killing  must  have  been  a  consequence  of  some 
unlawful  act.  Now,  there  is  no  law  whicli  prohibits  any  man  from 
prescribing  for  a  sick  person  with  his  consent,  if  he  honestlv  intends  to 


310  COMMONWEALTH    V.    PIERCE.  [CHAP.  IV. 

cure  him  bj^  his  prescription."  This  language  is  ambiguous,  and  we 
must  begin  b}'  disposing  of  a  doubt  to  which  it  might  give  rise.  If  it 
means  that  the  killing  must  be  the  consequence  of  an  act  which  is  un- 
lawful for  independent  reasons  apart  from  its  likelihood  to  kill,  it  is 
wrong.  Such  may  once  have  been  the  law,  but  for  a  long  time  it  has 
been  just  as  fully,  and  latterly,  we  may  add,  much  more  willingly,  rec- 
ognized that  a  man  may  commit  murder  or  manslaughter  by  doing 
otherwise  lawful  acts  recklessly,  as  that  he  may  by  doing  acts  unlawful 
for  independent  reasons,  from  which  death  accidentalh'  ensues.  3  Inst. 
57  ;  1  Hale  P.  C.  472-477  ;  1  Hawk.  P.  C,  c.  29,  §§  3,  4,  12  ;  c.  31, 
§§  4-6;  Foster,  262,  263  (Homicide,  c.  1,  §  4)  ;  4  Bl.  Cora.  192,  197; 
1  East  P.  C.  260,  and  seq.  ;  Hull's  case,  Kelyng,  40,  and  cases  cited 
below. 

But  recklessness  in  a  moral  sense  means  a  certain  state  of  conscious- 
ness with  reference  to  the  consequences  of  one's  acts.  No  matter 
whether  defined  as  indifference  to  what  those  consequences  may  be,  or 
as  a  failure  to  consider  their  nature  or  probability  as  full}-  as  the  party 
might  and  ought  to  have  done,  it  is  understood  to  depend  on  the  actual 
condition  of  the  individual's  mind  with  regard  to  consequences,  as 
distinguished  from  mere  knowledge  of  present  or  past  facts  or  circum- 
stances, from  which  some  one  or  everybody  else  might  be  led  to  antici- 
pate or  apprehend  them  if  the  supposed  act  were  done.  We  have  to 
determine  whetlier  recklessness  in  this  sense  was  necessarv  to  make 
the  defendant  guilty  of  felonious  homicide,  or  whether  his  acts  are  to 
be  judged  by  the  external  standard  of  what  would  be  morally  reck- 
less, under  the  circumstances  known  to  him,  in  a  man  of  reasonable 
prudence. 

More  specifically,  the  questions  raised  by  the  foregoing  requests  and 
rulings  are  whether  an  actual  good  intent  and  the  expectation  of  good 
results  are  an  absolute  justification  of  acts,  however  foolhardy  they 
may  be  if  judged  by  the  external  standard  supposed,  and  whether  the 
defendant's  ignorance  of  the  tendencies  of  kerosene  administered  as  it 
was  will  excuse  the  administration  of  it. 

So  far  as  civil  liability  is  concerned,  at  least,  it  is  ver}'  clear  that 
what  we  have  called  the  external  standard  would  be  applied,  and  that, 
if  a  man's  conduct  is  such  as  would  be  reckless  in  a  man  of  ordinary 
prudence,  it  is  reckless  in  him.  Unless  he  can  bring  himself  within 
some  broadly  defined  exception  to  general  rules,  the  law  deliberately 
leaves  his  idiosyncrasies  out  of  account,  and  peremptorily  assumes  that 
he  has  as  much  capacity  to  judge  and  to  foresee  consequences  as  a  man 
of  ordinary  prudence  would  have  in  the  same  situation.  In  the  language 
of  Tindal,  C.  J.,  "Instead,  therefore,  of  saying  that  the  liability  for 
negligence  should  be  coextensive  with  the  judgment  of  each  individual, 
which  would  be  as  variable  as  the  length  of  the  foot  of  each  individual, 
we  ought  rather  to  adhere  to  the  rule  which  requires  in  all  cases  a  re- 
gard to  caution  such  as  a  man  of  ordinary  prudence  would  observe." 
Vaughan  v.  Menlove,  3  Bing.  N.  C.  468,  475  ;  s.  c.  4  Scott,  244. 


SECT.  ill.J  COMMONWEALTH    V.    PIERCE.  311 

If  this  is  the  rule  adopted  in  regard  to  the  redistribution  of  losses, 
whicli  sound  policy  allows  to  rest  where  they  fall  in  the  absence  of  a 
clear  reason  to  the  contrary,  there  would  seem  to  be  at  least  equal 
reason  for  adopting  it  in  the  criminal  law,  which  has  for  its  immediate 
object  and  task  to  establish  a  general  standard,  or  at  least  general  neg- 
ative limits,  of  conduct  for  the  communitv,  in  the  interest  of  the  safety 
of  all. 

There  is  no  denying,  however,  that  Commonwealth  v.  Thompson, 
although  possibly  distinguishable  from  the  present  case  upon  the  evi- 
dence, tends  very  strongly  to  limit  criminal  lialiility  moi-e  narrowly 
than  the  instructions  given.  lUit  it  is  to  be  observed  that  the  court 
did  not  intend  to  lay  down  any  new  law.  They  cited  and  meant  to 
follow  the  statement  of  Lord  Hale,  I  R  C.  429,  to  the  effect  "  that  if  a 
physician,  whether  licensed  or  not,  gives  a  person  a  potion,  without 
any  intent  of  doing  him  any  bodily  hurt,  but  with  intent  to  cure,  or 
prevent  a  disease,  and,  contrary  to  the  expectation  of  the  physician,  it 
kills  him,  he  is  not  guilty  of  murder  or  manslaughter."  6  Mass.  141. 
If  this  portion  of  the  charge  to  the  jury  is  reported  accurately,  which 
seems  uncertain  (6  Mass.  134,  n.),  we  think  that  the  court  fell  into  the 
mistake  of  taking  Lord  Hale  too  literally.  Lord  Hale  himself  admitted 
that  other  persons  might  make  themselves  liable  by  reckless  conduct. 
1  P.  C.  472.  We  doubt  if  he  meant  to  deny  that  a  physician  might  do 
so,  as  well  as  any  one  else.  He  has  not  been  so  understood  in  later 
times.  Rex  v.  Long,  4  C.  »&  P.  423,  436  ;  Webb's  case,  2  Lewin,  196, 
211.  His  text  is  simi)ly  an  abridgment  of  4  Inst.  251.  Lord  Coke 
there  cites  the  Mirror,  c.  4,  §  16,  with  seeming  ap[)roval,  in  favor  of 
the  liability.  The  case  cited  by  Hale  does  not  deny  it.  Fitz.  Abr. 
Corone,  pi.  163.  Another  case  of  the  same  reign  seems  to  recognize  it. 
Y.  B.  43  Edw.  III.  33,  pi.  38,  where  Thorp  said  that  he  had  seen  one 
iNI.  indicted  for  killing  a  man  whom  he  had  undertaken  to  cure,  by  want 
of  care.  And  a  multitude  of  modern  cases  have  settled  the  law  accord- 
ingly in  England.  Rex  v.  Williamson,  3  C.  &  P.  635 ;  Tessymond's  case, 
1  Lewin,  169;  Ferguson's  case,  1  Lewin,  181;  Rex  v.  Simpson,  Will- 
cock,  Med.  Prof.,  part  2,  ccxxvii. ;  Rex  v.  Long,  4  C.  &  P.  398;  Rex 
V.  Long,  4  C.  &  P.  423  ;  Rex  v.  Spiller,  5  C.  &  P.  333  ;  Rex  v.  Senior, 
1  Moody,  346;  Webb's  case,  ubi  supra;  s.  c.  1  Mood.  &  Rob.  405; 
Queen  v.  Spilling,  2  Mood.  &  Rob.  107;  Regina  v.  Whitehead,  3  C.  & 
K.  202;  Regina  v.  Crick,  1  F.  &  F.  519;  Regina  v.  Crook,  1  F.  «fe  F. 
521  ;  Regina  v.  Markuss,  4  F.  &  F.  356  ;  Regina  v.  Chamberlain,  10 
Cox  C.  C.  486  ;  Regina  v.  Macleod,  12  Cox  C.  C.  534.  See  also  Ann 
V.  State,  11  Humph.  159;  State  v.  Hardister,  38  Ark.  605;  and  the 
Massachusetts  cases  cited  below. 

If  a  physician  is  not  less  liable  for  reckless  conduct  than  other  people, 
it  is  clear,  in  the  light  of  admitted  principle  and  the  later  Massachusetts 
cases,  that  the  recklessness  of  the  criminal  no  less  than  that  of  the  civil 
law  must  be  tested  by  what  we  have  called  an  external  st.-mdard.  In 
dealing  with  a  man  who  has  no  special  training,  the  question  whether 


312  COMMONWEALTH   V.    PIERCE.  [CHAP.  IV. 

his  act  would  be  reckless  in  a  man  of  ordinary  prudence  is  evidently 
equivalent  to  an  inquiry  into  the  degree  of  danger  which  common  expe- 
rience shows  to  attend  the  act  under  the  circumstances  known  to  the 
actor.  The  only  difference  is  that  the  latter  inquir}'  is  still  more  obvi- 
ously external  to  the  estimate  formed  by  the  actor  personally  than  the 
former.  But  it  is  familiar  law  that  an  act  causing  death  may  be  mur- 
der, manslaughter,  or  misadventure,  according  to  the  degree  of  danger 
attending  it.  If  the  danger  is  verj-  great,  as  in  tlie  case  of  an  assault 
with  a  weapon  found  b}'  the  jur}'  to  be  deadly,  or  an  assault  with  hands 
and  feet  upon  a  woman  known  to  be  exhausted  by  illness,  it  is  murder. 
Commonwealth  v.  Drew,  4  Mass.  391,  396;  Commonwealth  v.  Fox, 
7  Gray,  585.     The  doctrine  is  clearh'  stated  in  1  East  P.  C.  262. 

The  ver}'  meaning  of  the  fiction  of  implied  malice  in  such  cases  at 
common  law  was,  that  a  man  might  have  to  answer  with  his  life  for 
consequences  which  he  neither  intended  nor  foresaw.  To  sa}'  that  he 
was  presumed  to  have  intended  them,  is  merely  to  adopt  anotlier 
fiction,  and  to  disguise  the  truth.  The  truth  was,  that  his  failure  or 
inabilit}'  to  predict  them  was  immaterial,  if,  under  the  circumstances 
known  to  him,  the  court  or  jur}',  as  the  case  might  be,  thought  them 
obvious. 

As  implied  malice  signifies  the  highest  degree  of  danger,  and  makes 
the  act  murder;  so,  if  the  danger  is  less,  but  still  not  so  remote  that  it 
can  be  disregarded,  the  act  will  be  called  reckless,  and  will  be  man- 
slaughter, as  in  the  case  of  an  ordinary  assault  with  feet  and  hands,  or 
a  weapon  not  dead)}',  npon  a  well  person.  Cases  of  Drew  and  Fox, 
nbi  supra.  Or  firing  a  pistol  into  the  highway',  when  it  does  not  amount 
to  murder.  Rex  v.  Burton,  1  Stra.  481.  Or  slinging  a  cask  over  the 
highway  in  a  customar}-,  but  insufficient  mode.  Rigmaidon's  case, 
1  Lewin,  180.  See  Hull's  case,  ubi  supra.  Or  careless  driving.  Rex^ 
V.  Timmins,  7  C.  &  P.  499;  Regina  v.  Dalloway,  2  Cox  C.  C.  273; 
Regina  v.  vSwindall,  2  C.  &  K.  230. 

If  the  principle  wliich  has  thus  been  established  both  for  murder  and 
manslaughter  is  adhered  to,  the  defendant's  intention  to  produce  the 
opposite  result  from  that  which  came  to  pass  leaves  him  in  the  same 
position  with  regard  to  the  present  charge  that  he  would  have  been  in 
if  he  had  had  no  intention  at  all  in  tl>e  matter.  We  tliink  that  tlie 
principle  must  be  adhered  to,  where,  as  here,  the  assumption  to  act  as 
a  physician  was  uncalled  for  by  any  sudden  emergency,  and  no  excep- 
tional circumstances  are  shown  ;  and  that  we  cannot  recognize  a  privi- 
lege to  do  acts  manifestly  endangering  human  life,  on  the  ground  of 
good   intentions  alone. 

We  have  implied,  however,  in  what  we  have  said,  and  it  is  undoubt- 
edl}'  true,  as  a  general  proposition,  that  a  man's  liability  for  his  acts  is 
determined  by  their  tendency  under  the  circumstances  known  to  him, 
and  not  by  their  tendency  under  all  the  circumstances  actually  affecting 
the  result,  whether  known  or  unknown.  And  it  may  be  asked  why  the 
dangerous  character  of  kerosene,  or  "the  fatal  tendency  of  the  pre- 


SECT.  III.]  COMMONWEALTH   V.    PIERCE.  313 

scription,"  as  it  was  put  in  the  fifth  request,  is  not  one  of  the  circum- 
stances the  defendant's  knowledge  or  ignorance  of  which  might  have  a 
most  important  bearing  on  his  guilt  or  innocence. 

But  knowledge  of  the  dangerous  character  of  a  thing  is  only  the 
equivalent  of  foresight  of  the  way  in  which  it  will  act.  We  admit  that, 
if  the  thing  is  generally  supposed  to  be  universally  harmless,  and  only 
a  specialist  would  foresee  that  in  a  given  case  it  would  do  damage,  a 
person  who  did  not  foresee  it,  and  who  had  no  warning,  would  not  be 
held  liable  for  the  harm.  If  men  were  held  answerable  for  everything 
the}'  did  which  was  dangerous  in  fact,  they  would  be  held  for  all  their 
acts  from  which  harm  in  fact  ensued.  The  use  of  the  thing  must  be 
dangerous  according  to  common  experience,  at  least  to  the  extent  that 
there  is  a  manifest  and  appreciable  chance  of  harm  from  what  is  done, 
in  view  either  of  the  actor's  knowledge  or  of  his  conscious  ignorance. 
And  therefore,  again,  if  the  danger  is  due  to  the  specific  tendencies  of 
the  individual  thing,  and  is  not  characteristic  of  the  class  to  which  it 
belongs,  which  seems  to  have  been  the  view  of  the  common  law  with 
regard  to  bulls,  for  instance,  a  person  to  be  made  liable  must  have 
notice  of  some  past  experience,  or,  as  is  commonly  said,  "  of  the  qualit}'- 
of  his  beast."  1  Hale  P.  C.  430.  But  if  the  dangers  are  characteristic 
of  the  class  according  to  common  experience,  then  he  who  uses  an  arti- 
cle of  the  class  upon  another  cannot  escape  on  the  ground  that  he  had 
less  than  the  common  experience.  Common  experience  is  necessary  to 
the  man  of  ordinary  prudence,  and  a  man  who  assumes  to  act  as  the 
defendant  did  must  have  it  at  his  peril.  When  the  jury  are  asked 
whether  a  stick  of  a  certain  size  was  a  deadly  weapon,  they  are  not 
asked  further  whether  the  defendant  knew  that  it  was  so.  It  is  enough 
that  he  used  and  saw  it  such  as  it  was.  Commonwealth  v.  Drew,  ubi 
siqjra.  See  also  Commonwealth  v.  Webster,  5  Gush.  295,  306.  So  as 
to  an  assault  and  battery  by  the  use  of  excessive  force.  Common- 
wealth V.  Randall,  4  Gray,  36.  So  here.  The  defendant  knew  that  he 
was  using  kerosene.  The  jury  have  found  that  it  was  applied  as  the 
result  of  foolhardy  presumption  or  gross  negligence,  and  that  is  enough. 
Commonwealth  v.  Stratton,  114  Mass.  303,  305.  Indeed,  if  the  de- 
fendant had  known  the  fatal  tendency  of  the  prescription,  he  would 
have  been  perilously  near  the  line  of  murder.  Regina  v.  Packard, 
C.  &,  M.  236.  It  will  not  be  necessary  to  invoke  the  authority  of  those 
exceptional  decisions  in  which  it  has  been  held,  with  regard  to  knowl- 
edge of  the  circumstances,  as  distinguished  from  foresight  of  the  con- 
sequences of  an  act,  that,  when  certain  of  the  circumstances  were 
known,  the  party  was  bound  at  his  peril  to  inquire  as  to  the  others, 
although  not  of  a  nature  to  be  necessarilv  inferred  from  what  were 
known.  Commonwealth  v.  Hallett,  183  Mass.  452;  Regina  v.  Prince, 
L.  R.  2  C.  C.  154  ;  Commonwealth  v.  Farren,  9  Allen,  489. 

The  remaining  questions  may  be  disposed  of  more  shortly.  When 
the  defendant  applied  kerosene  to  the  person  of  the  deceased  in  a  way 
which  the  invy  have  found  to  have  been  reckless,  or,  in  other  words. 


314  JOHNSON    V.    STATE.  [CHAP.  IV. 

seriously  and  unreasonably  endangering  life  according  to  common  ex- 
perience, he  did  an  act  which  his  patient  could  not  justify  by  her  con- 
sent, and  which  therefore  was  an  assault  notwitlistanding  that  consent. 
Commonwealth  v.  Collberg,  119  Mass.  350.  See  Commonwealth  v. 
Mink,  123  Mass.  422,  425.  It  is  unnecessary  to  rely  on  the  principle 
of  Commonwealth  /•.  Stratton,  ubi  supra,  that  fraud  ma^'  destroy  the 
effect  of  consent,  although  evidently  the  consent  in  this  case  was  based 
on  the  express  or  implied  representations  of  the  defendant  concerning 
his  experience. 

As  we  have  intimated  above,  an  allegation  that  the  defendant  knew 
of  the  deadly  tendency"  of  the  kerosene  was  not  only  unnecessary,  but 
improper,  Regina  v.  Packard,  ubi  supra.  An  allegation  that  the 
kerosene  was  of  a  dangerous  tendenc}'  is  superfluous,  although  similar 
allegations  are  often  inserted  in  indictments,  it  being  enough  to  allege 
the  assault,  and  that  death  did  in  fact  result  from  it.  It  would  be 
superfluous  in  the  case  of  an  assault  with  a  staff",  or  where  the  death 
resulted  from  assault  combined  with  exposure.  See  Commonwealth  v. 
Macloon,  101  Mass.  1.  See  further  the  second  count,  for  causing 
death  by  exposure,  in  Stockdale's  case,  2  Lewin,  220 ;  Regina  v.  Smith, 
11  Cox  C.  C.  210.  The  instructions  to  the  jury  on  the  standard  of  skill 
by  which  the  defendant  was  to  be  tried,  stated  above,  were  as  favorable 
to  him  as  he  could  ask. 

The  olijection  to  evidence  of  the  defendant's  previous  unfavorable 
experience  of  the  use  of  kerosene  is  not  pressed.  The  admission  of  it 
in  rebuttal  was  a  matter  of  discretion.  Coramonwe.alth  7^  Blair,  126 
Mass.  40.  Exceptions  overruled. 


JOHNSON  V.  STATE. 

Supreme  Court  of  Ohio.     1902. 

[Reported  66  Ohio  St.  59.] 

Price,  J.  If  the  conceded  facts  are  sufficient  and  the  charge  of  the 
trial  court  sound  law  to  govern  the  jury  in  deciding  on  such  facts,  the 
plaintiff  in  error  may  have  been  properly  punished  for  very  reprehensi- 
ble conduct.  That  part  of  the  charge  contained  in  the  statement  of 
the  case  as  well  as  a  subsequent  paragraph  which  we  will  notice,  were 
equivalent  to  directing  a  verdict  of  conviction,  inasmuch  as  there  was 
no  dispute  as  to  the  facts.  There  was  a  A'crdict  of  conviction  and 
a  sentence  upon  the  verdict,  which  the  circuit  court  sustained,  and 
thereby  nuist  have  held  that  the  charge  correctly  stated  the  law  of  the 
case. 

The  importance  of  what  is  presented  as  an  apparentl}'  new  doctrine 
in  this  state,  as  well  as  respect  for  the  opinions  of  both  the  lower 
courts,  have  been  sufficient  reasons  for  giving  the  questions  involved 
a  careful  consideration. 


SECT.  III.]  JOHNSON   V.   STATE,  315 

The  indictment  for  manslaughter  in  this  case  is  in  the  short  form 
authorized  by  section  7217  of  the  Revised  Statutes,  and  it  charges  that 
"  Noah  Johnson  ...  on  the  twcnt3--fifth  day  of  May  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  one,  in  the  county  of 
Scioto,  did  unlawfully  kill  one  Emory  Barrows  then  and  there  being, 
contrary  to  the  form  of  the  statute,"  etc. 

Prior  to  the  codification  of  the  criminal  statutes,  manslaughter  was 
thus  defined  :  "  That  if  any  person  shall  unlawfully  kill  another  without 
malice,  either  upon  a  sudden  quarrel,  or  unintentionally  while  the  slayer 
is  in  the  commission  of  some  unlawful  act,  every  such  person  shall  be 
deemed  guilty  of  manslaughter,  and  on  conviction  thereof,  be  pun- 
ished," etc.   >ol.  1,  S.  &  C.  403. 

The  statute  on  the  subject  now  is  section  6811,  Revised  Statutes, 
which  reads:  "Whoever  unlawfully  kills  another,  except  as  provided 
in  the  last  three  sections,  is  guilty  of  manslaughter,  and  shall  be  im- 
prisoned," etc.  The  preceding  sections  define  murder  in  the  first  and 
second  degrees.  But  the  present  section  9811  is  not  different  in  sub- 
stance and  meaning  from  the  original  section  above  quoted,  and  to 
ascertain  the  elements  of  the  crime  of  manslaughter  we  look  to  the 
original  as  it  stood  before  codification  or  revision.  Therefore,  to  con- 
vict of  manslaughter,  it  is  incumbent  upon  the  state  to  establish  that 
the  killing  was  done  "either  upon  a  sudden  quarrel,  or  unintentionally 
while  the  slayer  was  (is)  in  the  commission  of  some  unlawful  act." 

It  is  clear  from  the  facts  and  the  instructions  given  the  jur}', 
that  Barrows  was  not  killed  by  Johnson  in  a  quarrel  ;  nor  was  the  kill- 
ino-  intentional.  Hence,  the  latter  clause  of  the  definition  of  the  crime 
is  the  one  to  which  our  investigation  sliould  be  confined.  The  state 
was  required  to  show  that  while  tlie  killing  was  unintentional,  it  was 
done  by  Johnson  while  he  was  in  the  commission  of  some  unlawful  act ; 
and  the  question  arises,  whether  the  negligent  act  or  acts  of  the  slayer, 
though  no  breach  of  any  law,  may  be  sufficient  to  constitute  the  unlaw 
ful  act  designated  in  the  statute.  Or,  is  the  state  required  to  show  that 
he  was  in  the  commission  of  an  act  prohibited  by  law  ? 

At  the  time  of  this  homicide  there  was  even  no  ordinance  of  the 
village  of  Scioto  regulating  the  speed  or  manner  of  riding  bicycles  upon 
its  streets.  None  appears  in  the  record,  and  we  therefore  assume  there 
was  no  such  ordinance.  And  it  is  not  claimed  that  there  was  any  stat- 
ute then  in  force  on  that  subject.  What  then  is  the  proper  construc- 
tion of  the  clause  "  while  in  commission  of  some  unlawful  act  "? 

The  construction  which  prevailed  in  the  lower  courts  is  found  again 
in  a  portion  of  the  charge  which  we  quote  as  the  final  admonition 
to  the  jury:  "Now,  gentlemen,  apply  these  principles  to  the  case  and 
determine  from  the  evidence  introduced  upon  the  trial  whether  the  de- 
fendant, Noah  Johnson,  at  the  time  he  struck  and  killed  the  decedent, 
Emory  Barrows,  was  riding  his  bicycle  with  gross  negligence,  and  was 
it  sucii  as  an  ordinarily  reasonable  and  prudent  person  might  and  rea- 
sonably ought  to  have  foreseen  would  endanger  the  lives  and  safety  of 


316  JOHNSON    V.    STATE.  [CHAP,  IV. 

others,  and  be  likely  to  produce  fatal  injuries  ;  and  was  such  killing 
the  direct,  natural,  and  proximate  result  of  such  negligence?  If  the 
evidence  satisfies  you  beyond  a  reasonable  doubt  of  all  these  matters, 
then  your  verdict  should  be  that  the  defendant  is  guilty  of  manslaughter 
as  he  stands  charged  in  the  indictment ;  otherwise  you  should  acquit  him." 

In  this  language  the  trial  court  told  the  jur^-  that  if  the  defendant's 
conduct  in  the  manner  of  riding  the  bicycle  —  its  speed  without  signal 
of  a  bell —  was,  in  their  judgment,  grossly  negligent,  it  was  an  unlaw- 
ful act,  and  they  might  find  that  in  such  conduct  he  was  committing  an 
unlawful  act,  and,  if  it  resulted  in  the  death  of  Barrows,  the  rider  was 
guilty  of  manslaughter.  And  it  was  left  to  the  jury,  and  they  were 
directed  to  determine  from  the  evidence  whetlier  or  not  the  acts  done 
were  grossly  negligent  and  regardless  of  the  life  and  safety  of  another. 
If  so,  to  convict. 

We  have  no  common  law  crimes  in  this  state.  We  think  such  has 
been  the  uniform  understanding  of  the  bar,  and  the  opinion  of  both  the 
judicial  and  legislative  departments  of  our  commonwealth.  Before  the 
trial  of  this  case  there  was  but  one  other  case  brouglit  to  our  attention 
where  the  proposition  has  been  called  in  question.  Weller  v.  The  State 
of  Ohio,  10  Circ.  Dec.  381  ;  19  C.  C.  R.  166. 

But  this  court  has  settled  the  commonly  accepted  rule  in  more  than 
one  case.  In  Sutcliffe  i\  The  State,  18  Ohio,  469,  477,  Justice  Avery, 
speaking  for  the  court,  says:  "There  is  no  common  law  crime  in  this 
state,  and  we  therefore  look  always  to  the  statute  to  ascertain  what  is 
the  offence  of  the  prisoner,  and  what  is  to  be  his  punishment  .  .  ."' 
Again  on  same  page  :  "  What  is  affirmed  in  this  statute  of  manslaughter 
of  the  character  which  this  court  is  intended  to  reach,  except  that  the 
slayer  must  be  in  the  commission  at  the  time  of  some  unlawful  act?" 

Also  on  page  477  :  "It  is  claimed  for  the  plaintiff  in  error  that  there 
is  no  allegation  in  the  count  of  the  unlawful  act  designated  in  the  stat- 
ute. It  was  necessary  to  allege  in  the  indictment  that  the  person  was 
engaged  in  the  commission  of  some  unlawful  act.  And  this  allegation, 
it  appears  to  the  court,  is  distinctly'  made  in  that  part  of  the  indictment 
which  charges  the  prisoner  with  an  assault  upon  the  person  killed, 
and  unlawfully  discharging  and  shooting  off  at  him  a  loaded  gun. 
This  sufficiently  declares  an  unlawful  act     .     .     ." 

As  before  stated,  our  statute  now  provides  for  a  shorter  form  of  in- 
dictment, but  it  does  not  dispense  with  the  ingredients  of  manslaughter 
as  defined  in  the  former  statute. 

In  Smith  v.  The  State,  12  Ohio  St.  466,  469,  this  court  says:  "It 
must  be  borne  in  mind  that  we  have  no  common  law  offences  in  this 
state.  No  act  or  omission,  however  hurtful  or  immoral  in  its  tenden- 
cies, is  punishable  as  a  crime  in  Ohio,  unless  such  act  or  omission 
is  speciall}'  enjoined  or  prohibited  b3'  the  statute  law  of  the  state.  It 
is,  therefore,  idle  to  speculate  upon  the  injurious  consequences  of  per- 
mitting such  conduct  to  go  unpunished,  or  to  regret  tliat  our  criminal 
code  has  not  the  expansiveness  of  the  common  law." 


SECT.  III.]  JOHNSON   V.    STATE.  317 

The  same  statement  of  tue  law  was  again  made  in  Mitchell  v.  The 
State,  42  Ohio  St.  383,  and  other  decisions  of  this  court. 

We  think  the  same  rule  abides  in  many,  if  not  all  the  other  states  of 
the  Union  whose  legislatures  have  many  codes  or  systems  of  statutory 
crimes.  It  evidently  is  true  of  the  federal  government  as  settled  by 
repeated  decisions  of  the  Supreme  Court  of  the  United  States.  United 
States  V.  Worrall,  2  U.  S.  (2  Dall.)  384  :  United  States  v.  Hudson  and 
Goodwin,  11  U.  S.  (7  Cranch),  32  ;  Pennsylvania  v.  Bridge  Co.,  54  U. 
S.  (43  How.)  518,  and  later  cases  in  that  court.  When  our  legisla- 
ture first  enacted  statutes  upon  the  subject  of  homicide  and  defining  its 
different  degrees,  it  did,  as  to  manslaughter,  what  the  state  suggests, 
adopted  almost  literally  the  common  law  definition.  Sutcliffe  v.  The 
State,  18  Ohio,  469,  supra.  But  when  this  definition  was  borrowed 
and  adopted  by  our  legislature,  it  was  adopted,  not  in  part,  but  as 
a  whole,  and  the  act  committed  when  the  unintentional  killing  occurs, 
must  be  a  violation  of  some  prohibitory  law.  The  very  word  "  unlaw- 
ful" in  criminal  jurisprudence  means  that  and  nothing  less.  Surely 
the  legislature  did  not  intend  to  adopt  part  of  the  common  law  descrip- 
tion of  the  offence  as  a  statutory  provision,  and  leave  the  other  part 
to  the  expansiveness  of  the  common  law.  Yet,  that  is  practicall_y  the 
construction  which  the  lower  courts  must  have  placed  upon  our  statute 
against  manslaughter.  We  assume  that  the  facts  show  couduct  grossly 
negligent  in  character.  There  was  no  malice  and  no  quarrel  between 
defendant  and  the  deceased.  The  killing  was  unintentional.  It  was 
manslaughter  nevertheless,  if  the  slayer  was  then  in  commission  of 
some  unlawful  act.  The  jury  were  told  that  if  in  their  judgment  the 
accused  was  guilty  of  gross  negligence  and  a  disregard  for  the  lives 
and  safety  of  others,  the  state  was  entitled  to  a  verdict  of  manslaughter. 
In  considering  this  rather  unusual,  if  not  new  construction  of  the  law, 
we  must  not  forget  a  few  elementary  principles  of  the  law  of  negligence. 
It  (negligence)  ma}'  consist  of  acts  of  omission  as  well  as  commission; 
and  what  may  be  mere  ordinary  negligence  under  one  class  of  circum- 
stances and  conditions,  may  become  gross  negligence  under  other  con- 
ditions and  circumstances.  Negligence  is  the  failure  to  exercise  ordinary 
care.  Gross  negligence  may  consist  in  failure  to  exercise  an}-  or  ver}' 
slight  care.  There  are  other  definitions,  but  these  are  sufficient  now 
for  our  purpose.  So  we  may  truly  say  that  negligence  differs  only 
in  degree.  With  this,  we  cannot  overlook  what  experience  has  taught 
for  many  years,  that  what  may  seem  ordinary  negligence  when  con- 
templated by  one  mind  ma}'  be  regarded  b}'  another  as  very  gi'oss  neg- 
ligence. The  inferences  drawn  from  the  same  facts  b}'  different  minds 
may  often  greatly  differ.  Hence,  when  we  look  to  the  case  as  it 
appeared  in  the  trial  court,  we  see  that,  without  any  rule  of  conduct 
prescribed  b\'  statute  to  govern  the  case,  the  rule  for  the  first  time  was 
to  be  established  by  the  verdict  of  the  jury  and  sentence  of  the  court. 

Up  to  that  time  the  behavior  of  the  defendant  had  violated  no  law. 
It  was  for  the  jury  to  say,  under  tlie  instructions  given,  whether  the 


318  JOHNSON  ?;. 'state.  [chap.  iv. 

accused  had  been  guilty  of  gross  negligence.  If  so,  although  the  kill- 
ing was  unintentional  and  free  from  malice,  it  was  manslaughter.  In 
England,  the  home  of  the  common  law  and  where  it  attained  its  won- 
derful growth,  and  from  which  we  have  borrowed  to  a  large  extent,  it 
became  necessary  and  was  permissible  to  build  up,  by  the  pen  of  law 
writers  and  adjudged  cases,  a  system  of  criminal  jurisprudence,  and 
enforce  it  until  parliament  would  occupy  the  ground  and  supplant  it. 
But  that  country,  while  so  doing,  was  under  no  written  constitution, 
and  ex  post  facto,  or  retroactive  laws  might  be  laid  down  by  the  courts 
or  enacted  by  parliament.  Not  so  in  this  country-  where  we  have  a 
written  constitution  prohibiting  retroactive  and  ex  post  facto  legisla- 
tion. Weeks  or  months  after  the  negligent  acts  involved  in  this  case, 
we  have  the  rule  of  conduct  of  the  defendant  passed  upon  and  defined 
by  a  verdict  upon  the  all  important  and  indispensable  element  of  man- 
slaughter based  on  the  facts  of  the  case.  It  is  retroactive  in  its  effect. 
An  act  of  the  legislature  attempting  to  so  operate  would  be  promptly 
held  unconstitutional.  Can  we  sustain  a  construction  of  our  statute 
against  manslaughter  which  will  have  the  same  effect? 

In  our  judgment  the  unlawful  act,  the  commission  of  which  gives 
color  and  character  to  the  unintentional  killing,  is  an  act  prohibited  b}' 
law,  and  that  such  is  the  natural  meaning  of  the  term  or  clause  when 
used  in  the  parlance  of  criminal  jurisprudence. 

Another  observation  is  appropriate  here :  The  uncertainty  of  the 
common  law.  Some  principles  which  are  deemed  common  law  in  Ohio 
are  not  so  regarded  in  other  states,  and  what  some  of  them  regard  as 
common  law  we  do  not  recognize  as  such  in  Ohio.  Therefore,  the 
wisdom  of  enacting  a  S3'stem  of  penal  laws  at  the  beginning  of  our 
statehood,  and  of  improving  and  expanding  it  as  fast  as  conditions  of 
society  required.  The  growth  of  such  legislation  is  itself  against  the 
holdings  of  the  lower  courts.  What  acts  or  omissions  in  early  years 
were  harmless,  owing  to  the  sparsity  of  population  and  character  of 
property  and  business  tlien  owned  and  conducted,  afterwards,  as  popu- 
lation increased  and  business  relations  became  diversified,  became  in- 
jurious to  others;  and  in  other  respects  the  good  order  of  society  and 
the  protection  of  life  and  property'  demanded  and  received  appropriate 
legislation.  That  department  of  our  state  government  has  kept  pace 
with  the  wrongs,  the  vices,  and  immoralities  of  our  social  and  industrial 
life.  It  has  gone  farther,  when  occasion  demanded,  and  has  made 
criminal  many  acts  and  omissions  which  before  belonged  to  the  field  of 
negligence,  as  witness,  many  provisions  regarding  the  management  of 
railroads,  factories,  and  mines,  and  other  branches  of  business  where 
labor  is  employed.  Many  acts  or  omissions  to  act,  which  before  were 
subject  to  the  charge  of  negligence,  are  made  penal  l\v  statute.  And  a 
consideration  of  tliis  course  of  legislation  demonstrates  that  there  is  no 
longer  a  necessit}'  to  turn  to  the  common  law  to  find  what  act  or  acts 
it  is  unlawful  to  commit. 

If  tiie  contention  of  the  state  in  this  case  is  tenable,  it  is  not  difficult 


SECT.  III.]  REGINA    V.    EG  AN.  319 

to  see  how  the  criminal  dockets  in  our  courts  will  soon  be  flooded. 
The  gross  negUgence  of  one  may  unintentionally  cause  the  death  of 
many.  If  such  negligence  is  the  commission  of  an  unlawful  act,  the 
killing  of  each  of  the  slain  becomes  a  separate  crime  of  manslaughter. 
And  so  it  would  proceed,  and  the  cases  multiply  according  to  the  judg- 
ment of  men,  as  to  when  the  acts  of  others  are  or  are  not  grossly  negli- 
gent. 

The  position  is  untenable,  and  we  decide  that  the  judgments  of  the 
common  pleas  and  circuit  courts  are  erroneous  and  must  be  reversed, 
and  the  facts  of  this  case  being  conceded,  as  stated  herein,  the  plaintiff 
in  error  is  discharged.  Heversed. 

BuKKET,  Davis,  and  Shauck,  J  J.,  concur. 


REGINA  V.  EGAN. 

Crown  Case  Reserved,  Victoria.     1897. 

[Reported  23  Vic.  L.  R.  159.] 

The  prisoner  was  convicted  at  the  April  criminal  sittings  of  the 
court  of  the  manslaughter  of  her  male  child,  aged  about  eleven  months. 
On  the  evening  of  the  offence  the  prisoner  had  been  drinking,  and  in 
a  more  or  less  intoxicated  condition  took  the  child  into  bed  with  her, 
overlay  it,  and  thus  caused  its  death  by  suffocation.  The  presiding 
judge,  Hodges,  J.,  directed  the  jury  that  if  they  believed  this  evidence 
they  should  find  the  prisoner  guilty.  The  prisoner  was  convicted. 
Hodges,  J.,  then  reserved  for  consideration  of  the  Full  Court  the 
question  whether  his  direction  was  right. 

Madden,  C.  J.,  delivered  the  judgment  of  the  Court  [Madden,  C.  J., 
Hodges  and  Hood,  JJ.].  We  think  that  the  proposition  involved 
in  this  case  is  too  broad,  and  that,  looking  at  all  the  circumstances, 
the  charge  of  manslaughter  cannot  be  supported.  If  a  woman  has 
made  a  resolution  to  kill  her  child,  and,  having  allowed  herself  to  be- 
come to  some  degree  drunk,  takes  it  to  bed  with  her,  knowing  that 
in  a  heavy  sleep  she  will  probably  overlie  the  child  —  apparently  in- 
nocentl}-,  but  at  the  same  time  with  the  intention  to  destroy  the  child  — 
then  that  is  murder.  If,  being  in  the  state  I  have  mentioned,  she, 
knowing  that  she  may  overlie  the  child,  and,  against  the  advice  or 
disregarding  the  remonstrances  of  her  friends,  takes  the  child  to  bed 
with  her  and  overlies  it,  killing  it,  that  is  manslaughter.  But  the 
evidence  in  this  case  is  to  the  effect  that  the  defendant  had  been 
drinking,  and  while  under  the  influence  of  liquor  and  after  taking  the 
child  to  bed  with  her,  by  an  unhappy  mischance  overlay  it ;  this,  in 
our  opinion,  is  not  suflacient  to  sustain  a  charge  of  manslaughter. 


320  MOKSE    V.   STATE.  [CHAP.  IV. 


SECTION  IV. 

Concurrence  of  Offence  and  Guilty  Mind. 

MORSE  y.  STATE. 
Supreme  Court  of  Errors  of  Connecticut.     1825. 

[Reported  6  Connecticut,  9.] 

This  was  an  information  against  the  plaintiff  in  error,  for  a  violation 
of  the  statute  "concerning  the  students  of  Yale  College,"  passed  in 
May,  1822.^  The  information  alleged  that  the  defendant,  on  the  15th 
of  January,  1824,  gave  credit  to  Washington  Van  Zandt,  then  a  student 
of  Yale  College,  and  under  the  age  of  twent3'-one  years,  for  suppers, 
wine  and  other  liquors,  to  the  amount  of  seven  dollars,  without  the 
knowledge  of  the  parent  or  guardian  of  Van  Zandt,  and  without  the 
knowledge  or  consent  of  the  officers  of  Y^'ale  College,  or  either  of  them. 

On  the  trial  before  the  county  court  the  defendant  claimed  that  if 
credit  was  given  to  Van  Zandt  by  any  one,  it  was  given  b}'  Stephen 
Northam,  who  was  the  servant  and  bar-keeper  of  the  defendant,  against 
his  express  directions  ;  and  that  the  defendant  could  not  be  responsible 
criminally  for  such  act  of  Northam.  The  court  charged  the  jury  that 
if  they  should  find  that  the  defendant  had  assented  to  Northam's  act  in 
giving  credit  to  Van  Zandt,  after  the  credit  was  given,  it  was  the  same 
as  if  the  defendant  had  previously  authorized  the  giving  of  such  credit , 
and  that  the  defendant  in  that  case  would  be  liable  as  principal,  the 
same  as  if  he  had  been  present,  advising  or  consenting  to  the  giving  of 
such  credit.^ 

The  jury  found  the  defendant  guilty ;  who  thereupon  filed  a  bill  of 

1  The  first  section  of  this  act  is  in  these  words :  "  That  no  person  or  persons  shall 
give  credit  to  any  student  of  Yale  College,  being  a  minor,  without  the  consent,  in 
writing,  of  his  parent  or  guardian,  or  of  such  officer  or  officers  of  the  college  as  may 
be  authorized,  by  the  government  tliereof ,  to  act  in  such  cases,  except  for  washing  or 
medical  aid."  The  2d  section  inflicts  a  penalty  from  $20  to  $300  for  a  violation  of  the 
law. 

2  Only  so  much  of  the  case  as  relates  to  this  point  is  given.  —  Ed. 


SECT.  IV.]  STATE   V.    MOORE.  321 

exceptions,  and  brought  a  writ  of  error ;  which  was  reserved  for  tlie 
advice  of  the  Supreme  Court  of  Errors, 

HosMEK,  C.  J.  From  the  motion  it  is  fairly  to  be  inferred  tliat  no 
credit  was  given  to  Van  Zandt  by  the  defendant ;  but  by  Northam,  his 
bar-keeper,  only,  without  the  knowledge  or  consent  of  Morse,  and 
against  his  express  directions.  In  the  performance  of  this  act,  Nor- 
tham was  not  the  defendant's  agent.  He  was  not  authorized  to  give 
the  credit,  either  expressly  or  in  the  usual  course  of  his  business  ;  but 
was  prohibited  from  doing  it.  Notwithstanding  this,  which  the  court 
below  impliedly  admitted,  the  jury  were  charged  that  if  the  defendant 
subsequently  assented  to  the  acts  of  Northam  he  ratified  them  and 
made  them  his  own.  This  was  an  unquestionable  error.  In  the  law  of 
contracts,  a  posterior  recognition,  in  many  cases,  is  equivalent  to  a 
precedent  command  ;  but  it  is  not  so  in  respect  of  crimes.  The  de- 
fendant is  responsible  for  his  own  acts,  and  for  the  acts  of  others  done 
by  his  express  or  implied  command,  but  to  crimes  the  maxim  Omnis 
ratihabitio  retrotrahitur  et  mandato  equiparatur  is  inapplicable. 

In  cases  admitting  of  accessories,  a  subsequent  assent  merely  would 
not  render  a  person  an  accessory.  Judgment  to  be  reversed. 


STATE   V.    MOORE. 
Superior  Court  of  Judicature  of  New  Hampshire.     1841. 

[Reported  12  Neic  Hampshire,  42.] 

Indictment  for  breaking  and  entering  the  house  of  Isaac  Paddleford, 
at  Lyman,  in  the  night  time,  on  the  19th  day  of  November,  1840,  with 
intent  to  steal,  and  stealing  therefrom  certain  pieces  of  money. 

It  appeared  in  evidence  that  the  prisoner  went  to  the  house,  which 
is  a  public  house,  and  asked  for,  and  obtained  lodging  for  the  night, 
and  that  he  took  the  money  from  a  box  in  a  desk  in  the  bar-room,  in 
the  course  of  the  niglit. 

The  jury  were  instructed  that  upon  this  indictment  the  prisoner 
might  be  convicted  of  burglary,  of  entering  in  the  night  time  and  steal- 
ing, or  of  larceny  ;  that  if  the  door  of  the  bar-room  were  shut,  and  the 
prisoner  left  his  own  room  in  the  night  time,  and  opened  the  door  of 
the  bar-room,  or  any  other  door  in  his  way  thereto,  except  his  own 
door,  and  stole  the  money,  he  was  guilty  of  burglary  ;  but  that  if  he 
left  his  own  room  in  the  night,  and  stole  the  money  from  the  bar-room, 


322  STATE   V.    MOORE.  [CHAP.  IV. 

without  opening  an\'  door  on  his  way  thereto,  except  his  own  door,  he 
was  guilt}'  of  entering  in  the  night  time  and  stealing. 

The  jury  found  the  prisoner  guilty  of  entering  in  the  night  time  and 
stealing. 

The  counsel  for  the  prisoner  contended  that  under  this  indictment 
the  prisoner  could  not  be  convicted  of  the  offence  of  which  he  was 
found  guilt}'. 

He  also  contended  that  the  prisoner,  being  a  guest,  and  having 
entered  the  house  with  the  assent  of  tlie  owner,  if  guilty  at  all  upon 
this  evidence,  was  guilty  of  larceny  only  ;  and  he  moved  to  set  aside 
the  verdict,  and  for  a  new  trial,  for  the  reasons  aforesaid. 

Gove,  Attorney-General,  for  the  State. 

Goodall^  for  the  prisoner. 

Gilchrist,  J.^  It  is  said  that,  as  the  prisoner  was  lawfully  in  the 
house,  he  cannot  be  convicted  of  the  offence  of  enteriug  in  the  night 
time  with  intent  to  steal. 

It  is  clear  that  the  prisoner  had  a  legal  authority  to  enter  the  house, 
without  any  special  permission  for  that  purpose  from  the  owner  or 
landlord.  If  an  innkeeper,  or  other  victualler,  hangs  out  a  sign,  and 
opens  his  house  for  travellers,  it  is  an  implied  engagement  to  entertain 
all  persons  who  travel  that  way  ;  and  upon  this  universal  assumpsit  an 
action  on  the  case  will  lie  against  him  for  damages,  if  he,  without  good 
reason,  refuses  to  admit  a  traveller.  3  Bl.  Com.  166.  And  an  indict- 
ment at  common  law  lies  against  an  innkeeper  if  he  refuses  to  receive 
a  guest,  he  having  at  that  time  room  in  his  house.  If  the  traveller 
conducts  properly,  he  is  bound  to  receive  him,  at  whatever  hour  of  the 
night  he  ma}'  arrive.     Rex  v.  Ivens,  7  C.  &  P.  213. 

An  innkeeper,  holding  out  his  inn  "  as  a  place  of  accommodation 
for  travellers,  cannot  prohibit  persons  who  come  under  that  character, 
in  a  proper  manner,  and  at  suitable  times,  from  entering,  so  long  as 
he  has  the  means  of  accommodation  for  them."  Markham  v.  Brown, 
8  N.  H.  Rep.  528.  As  he  has  authority  to  enter  the  house,  so  he  may 
enter  any  of  the  common  public  rooms.  Markham  r.  Brown.  Thi 
bar-room  of  an  inn  is,  from  universal  custom,  the  most  public  room  in 
the  house  ;  and  whether  a  traveller  may,  without  permission,  enter 
any  of  the  private  rooms  or  not,  he  has  clearly  a  right  to  enter  the 
bar-room. 

If,  after  having  made  an  entry  into  the  house  by  authority  of  law,  he 
commit  a  trespass,  he  may  be  held  civilly  responsible  as  a  trespasser 
ab  initio.  This  principle  has  always  been  recognized  since  the  decision 
of  The  Six  Carpenters'  Case,  8  Coke,  290. 

The  prisoner,  therefore,  had  a  right  to  enter  the  inn,  and  the  bar- 
room ;  and  the  question  arises,  whether  the  larceny  committed  in  the 
bar-room  can  relate  back,  and  give  a  character  to  the  entry  into  the 
house,  so  as  to  make  it  criminal,  and  the  prisoner  punishable  for  it. 

^  Part  only  of  the  opinion  is  given. 


SECT.  IV.]  STATE    V.    MOORE.  323 

npon  reasoning  similar  to  that  which,  in  a  civil  action,  would  render 
him  liable  as  a  trespasser  ah  initio.  Except  the  inference  that  may 
lawfully  be  made  from  the  act  of  larceny,  there  is  no  evidence  that  he 
entered  with  an}-  illegal  purpose,  or  a  felonious  intent. 

Where  the  law  invests  a  person  with  authority  to  do  an  act,  the  con- 
sequences of  an  abuse  of  that  authority  b}-  the  party  should  be  severe 
enough  to  deter  all  persons  from  such  an  abuse.  But  has  this  "  policy 
of  the  law  "  ever  been  extended  to  criminal  cases  ?  We  are  not  aware 
that  it  has.  It  is  true  that,  in  order  to  ascertain  the  intent  of  the 
accused,  the  law  often  regards  the  nature  of  the  act  committed.  But 
this  is  generalh'  such  an  act  as  could  not  have  been  committed  with 
any  other  than  a  criminal  purpose.  Thus,  the  act  of  secretly  takiug 
the  property  of  another,  necessaril}-  raises  the  presumption  that  the 
party  intended  to  steal,  and  this  presumption  stands  until  explained 
by  other  evidence.  In  an  indictment  for  breaking,  etc.,  with  intent  to 
commit  a  felony,  the  actual  commission  is  so  strong  a  presumptive 
evidence  that  the  law  has  adopted  it,  and  admits  it  to  be  equivalent  to 
a  charge  of  the  intent  in  the  indictment.  But  where  one  lawfully' 
enters  a  house,  it  by  no  means  follows  that  because  he  steals,  while 
there,  he  entered  with  that  purpose.  The  act  of  stealing  is  evidence 
of  the  intent  to  steal ;  but  is  hardly  sufficient  to  rebut  the  presumption 
that  where  he  lawfully  entered,  he  entered  for  a  lawful  purpose.  To 
hold  that,  for  a  lawful  entry,  a  party  could  be  punished,  because,  after 
such  entry,  he  does  an  unlawful  act,  would  be  to  find  him  guilty  of  a 
crime  by  construction  ;  a  result  which  the  law,  in  its  endeavors  always 
to  ascertain  tlie  real  intention  of  the  accused,  invariably,  in  theory, 
avoids,  and  which  has  seldom,  in  modern  times,  happened  in  practice. 

A  case  is  put  by  Lord  Hale,  the  reasoning  of  which  is  analogous  to 
that  we  have  used  in  this  case.  "  It  is  not  a  burglarious  breaking  and 
entry,  if  a  guest  at  an  inn  open  his  own  chamber  door,  and  takes  and 
carries  away  his  host's  goods,  for  he  has  a  right  to  open  his  oion  door, 
and  so  not  a  burglarious  breaking."     1  Hale  P.  C.  553,  554. 

If  a  burglary  could  not  be  committed  because  the  party  had  a  right 
to  open  his  own  door,  notwithstanding  the  subsequent  larceny,  the 
same  principle  would  seem  to  be  applicable  here,  where  the  prisoner 
had  a  right  to  enter  the  house,  and  where,  by  parity  of  reasoning, 
his  subsequent  larceny  would  not  make  his  original  entry  unlawful. 

For  these  reasons,  the  judgment  of  the  court  is  that  the  verdict  be 

set  aside  and  a 

New  t7'ial  granted. 


324  STATE  V,    ASHER.  [CHAP.  IV. 


STATE   V.  ASHER. 
Supreme  Court  of  Arkansas.    1887. 

[Reported  50  ArL-ansas,  427.] 

At  the  May  term,  1887,  of  the  Phillips  Circuit  Court,  appellees  were 
indicted  for  a  violation  of  section  1645  of  Mansfield's  Digest,  —  !,  e., 
obtaining  money  under  false  pretences  ;  Asher  as  principal  and  Fitz- 
patrick  as  accessory.  It  is  charged  in  the  indictment  tliat  on  the  17th 
April,  1885,  Asher^pplied  to  one  J.  P.  Moore  to  purchase  six  mules; 
that  he  represented  himself  as  being  the  absolute  owner  of  the  east  half 
of  lot  251,  in  the  city  of  Helena;  that  it  was  free  from  incumbrance; 
that  he  could  give  a  first  lien  on  same  ;  that  he  produced  a  deed  of  con- 
veyance from  L.  A.  Fitzpatrick,  reciting  the  full  payment  of  the  pur- 
chase-money, and  offered  to  secure  the  payment  of  the  purchase-money 
of  the  mules  by  creating  a  first  lien  on  said  lot ;  that  Moore  sold  him 
the  mules  on  a  credit  to  expire  Nov.  1,  1885,  and  took  a  deed  of  trust 
on  the  lot  to  secure  the  purchase-money  of  the  mules  ;  that  the  deed  of 
trust  was  executed  by  Asher  on  the  17th,  and  was  filed  for  record  on 
the  18th,  day  of  April,  1885  ;  that  the  sale  of  the  mules  was  made  on 
the  faith  of  the  security  afforded  by  a  first  lien  on  the  east  half  of  said 
lot. 

It  is  further  charged  that  at  the  time  Asher  made  these  representa- 
tions he  had  already  executed  to  said  Fitzpatrick  a  deed  of  trust  upon 
said  east  half  of  said  lot,  to  secure  the  purchase-money  of  same,  which 
was  more  than  the  value  of  the  lot ;  that  said  lot  was  not  free  from 
incumbrance  ;  and  that  Asher  falsely  made  the  representation  that  he 
could  give  a  first  lien  on  said  half-lot  to  deprive  Moore  of  his  property- ; 
that  Fitzpatrick's  deed  of  trust  was  filed  for  record  on  the  17th  day  ol 
April,  1885.     Fitzpatrick  is  indicted  jointly  with  him  as  accessor3^ 

At  the  November  term,  1887,  of  the  court,  the  defendant  demurred 
to  the  indictment ;  the  demurrer  was  sustained,  and  the  State  appeals. 

Cockrill,  C.  J.  (after  stating  tlie  facts  as  above  set  forth).  To  con- 
stitute an  offence  within  the  meaning  of  section  1645,  Mansfield's  Digest, 
something  of  value  must  be  obtained  by  means  of  a  false  pretence  with 
the  intent  to  defraud.  To  obtain  goods  with  the  intent  to  defraud  is 
not  enough.     It  must  be  accomplished  by  a  false  pretence. 

By  the  terms  of  the  statute  the  pretence  must  be  false.  And  the  doc- 
trine undoubtedly  is,  that  if  it  is  not  false,  though  believed  to  be  so  by 
the  person  employing  it,  it  is  insuflScient.  2  Bish.  Cr.  Law,  s.  417.  The 
false  pretence  charged  in  this  case  is  Asher's  representation  that  the 
mortgage,  upon  the  security  of  which  he  got  the  mules  from  Moore, 
was  the  first  lien  on  the  land.  If  the  representation  is  true,  there  is  no 
foundation  for  this  prosecution,  however  reprehensible  Asher's  motive 
may  have  been,  because  the  false  pretence  would  not  be  established. 
Now,  construing  all  the  allegations  of  the  indictment  together,  is  it  shown 


SECT.  IV.]  STATE   V.    ASHER.  325 

that  the  representation  was  false  ?  It  is  charged  that  Asher  had  previ- 
ously executed  a  mortgage  to  his  co-defendant,  Fitzpatrick,  for  the  full 
value  of  the  land  and  that  it  was  the  prior  lien  ;  but  it  is  also  charged 
that  Fitzpatrick  counselled  Asher  to  make  the  representation  that  the 
land  was  free  from  incumbrance  and  aided  him  in  obtaining  the  mules 
from  Moore  on  the  faith  of  it.  The  demurrer  admits  that  these  allega- 
tions are  true.  Being  true,  the  legal  conclusion  is  that  Fitzpatrick 
waived  the  prioritj-  of  his  lien  and  is  estopped  from  asserting  it  against 
Moore.  Scott  v.  Orbison,  21  Ark.  ■202  ;  Gill  v.  Hardin,  48  Ark.  412; 
Shields  v.  Smith,  37  Id.  47. 

Asher's  representation  that  Moore's  mortgage  was  the  prior  lien  was 
therefore  true.  Moore  got  just  what  he  bargained  for,  according  to  the 
allegations  of  the  indictment,  and  he  has  not,  therefore,  been  injured  in 
any  way.  The  statutory  offence  has  not  been  committed.  Morgan 
V.  State,  42  Ark.  131.  It  is  not,  as  counsel  for  the  State  argues,  an 
attempt  to  have  an  offence  condoned  by  repairing  the  injury  done  in  its 
commission.    There  has  been  no  criminal  offence. 

Moore  might  have  been  injured  b}-  the  transaction  if  Fitzpatrick's 
mortgage-note  had  been  negotiated  according  to  the  law  merchant  and 
assigned  to  an  innocent  holder  for  value  before  maturity.  But  there  is 
no  allegation  of  the  existence  of  either  of  these  facts,  and  there  is  no 
presumption  that  that  state  of  facts  exists.  People  v.  Stone,  11  Wheat. 
182-190. 

Affirm.' 


326  m'naghten's  case.  [chap.  v. 


CHAPTER   V. 
CULPABILITY:    MODIFYING  CIRCUMSTANCES. 


SECTION   I. 

Insanity. 
M'NAGHTEN'S   CASE. 

Answer  of   the  Judges  to  the   House  of   Lords.     1843. 

{^Reported  10  Clark  Sf  Finnelly,  200.3 

The  prisoner  had  been  indicted  for  the  murder  of  Edward  Drum- 
mond.^  The  prisoner  pleaded  '•  Not  guilty."  Evidence  having  been 
given  of  the  fact  of  the  shooting  of  Mr.  Drummond,  and  of  his  death 
in  consequence  thereof,  witnesses  were  called  on  the  part  of  the  pris- 
oner to  prove  that  he  was  not,  at  the  time  of  committing  the  act,  in 
a  sound  state  of  mind. 

Lord  Chief  Justice  Tindal  (in  his  charge).  The  question  to  bf 
determined  is,  whether  at  the  time  the  act  in  question  was  committed, 
the  prisoner  had  or  had  not  the  use  of  his  understanding,  so  as  tc 
know  that  he  was  doing  a  wrong  or  wicked  act.  If  the  jurors  shouW 
be  of  opinion  that  the  prisoner  was  not  sensible,  at  the  time  he  com- 
mitted  it,  that  he  was  violating  the  laws  both  of  God  and  man,  theu 
he  would  be  entitled  to  a  verdict  in  his  favor :  but  if,  on  the  contrary, 
they  were  of  opinion  that  when  he  committed  the  act  he  was  in  s 
sound  state  of  mind,  then  their  verdict  must  be  against  him. 

Verdict,  Not  guilty^  on  the  ground  of  insayiity 

This  verdict,  and  the  question  of  the  nature  and  extent  of  the  un- 
soundness of  mind  which  would  excuse  the  commission  of  a  felony  of 
this  sort  having  been  made  the  subject  of  debate  in  the  House  of 
Lords,  it  was  determined  to  take  the  opinion  of  the  judges  on  the 
law  governing  such  cases.  Accordingly  the  judges  attended  the 
House  of  Lords  ;  when  (no  argument  having  been  had)  questions  of 
law  were  propounded  to  them. 

Lord  Chief  Justice  Tixdal.  My  Lords,  her  Majesty's  judges 
(with  the  exception  of  Mr.  Justice  Maule,  who  has  stated  his  opin- 
ion to  your  Lordships),  in  answering  the  questions  proposed  to  them 
by  your  Lordships'  House,  think  it  right,  in  the  first  place,  to  state 

1  The  statement  of  facts  in  this  case  has  been  abridged. 


SECT.  I.]  M'NAGHTEN's    CASE.  327 

that  they  have  forborne  entering  into  any  particular  discussion  upon 
these  questions,  from  the  extreme  and  almost  insuperable  difficulty  of 
applying  those  answers  to  cases  in  which  the  facts  are  not  Irought 
judicially  before  them.  The  facts  of  each  particular  case  must  of 
necessity  present  themselves  with  endless  variety,  and  with  every 
shade  of  difference  in  each  case  ;  and  as  it  is  their  duty  to  declare  the 
law  upon  each  particular  case,  on  facts  proved  before  them,  and  after 
hearing  argument  of  counsel  thereon,  they  deem  it  at  once  impracti- 
cable, and  at  the  same  time  dangerous  to  the  administration  of  justice, 
if  it  were  practicable,  to  attempt  to  make  minute  applications  of  the 
principles  involved  in  the  answers  given  by  them  to  your  Lordships' 
questions. 

They  have  therefore  confined  their  answers  to  the  statement  of  that 
which  tliey  hold  to  be  the  law  upon  the  abstract  questions  proposed 
by  your  Lordships ;  and  as  they  deem  it  unnecessary,  in  this  par- 
ticular case,  to  deliver  their  opinions  se7'iatim^  and  as  all  concur  in 
the  same  opinion,  they  desire  me  to  express  such  their  unanimous 
opinion  to  your  Lordships. 

The  first  question  proposed  by  your  Lordships  is  this  :  "  What  is 
the  law  respecting  alleged  crimes  committed  by  persons  afflicted  with 
insane  delusion  in  respect  of  one  or  more  particular  subjects  or  per- 
sons ;  as,  for  instance,  wiiere  at  the  time  of  the  commission  of  the 
alleged  crime  the  accused  knew  he  was  acting  contrary  to  law,  but  did 
the  act  complained  of  with  a  view,  under  the  influence  of  insane  delu- 
sion, of  redressing  or  revenging  some  supposed  grievance  or  injur}-, 
or  of  producing  some  supposed  public  benefit?" 

In  answer  to  which  question,  assuming  that  your  Lordships'  in- 
quiries are  confined  to  those  persons  who  labor  under  such  partial 
delusions  only,  and  are  not  in  other  respects  insane,  we  are  of  opinion 
that,  notwithstanding  the  party  accused  did  the  act  complained  of 
with  a  view,  under  the  influence  of  insane  delusion,  of  redressing  or 
revenging  some  supposed  grievance  or  injury,  or  of  producing  some 
public  benefit,  he  is  nevertheless  punishable  according  to  the  nature 
of  the  crime  committed,  if  he  knew  at  the  time  of  committing  such 
crime  that  he  was  acting  contrary  to  law  ;  by  which  expression  we 
understand  your  Lordships  to  mean  the  law  of  the  land. 

Your  Lordships  are  pleased  to  inquire  of  us,  secondly  :  "  "What  are 
the  proper  questions  to  be  submitted  to  the  jury,  where  a  person  al- 
leged to  be  afflicted  with  insane  delusion  respecting  one  or  more 
particular  subjects  or  persons  is  charged  with  the  commission  of  a 
crime  (murder,  for  example),  and  insanity  is  set  up  as  a  defence?" 
And,  thirdly:  "In  wliat  terms  ought  the  question  to  be  left  to  tlie 
jury  as  to  the  prisoner's  state  of  mind  at  the  time  when  the  act  was 
committed  ?  "  And  as  these  two  questions  appear  to  us  to  be  more 
conveniently  answered  together,  we  have  to  submit  our  opinion  to 
DC,  that  the  jurors  ought  to  be  told  in  all  cases  that  every  man  is  to 
be  presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason 


328  m'naghten's  case.  [chap.  v. 

to  be  responsible  for  his  crimes,  until  the  contrary  be  proved  to  their 
satisfaction  ;  and  that  to  establish  a  defence  on  the  ground  of  in- 
sanity, it  must  be  clearly  proved  that,  at  the  time  of  the  committing 
of  the  act,  the  party  accused  was  laboring  under  such  a  defect  of 
reason,  from  disease  of  the  mind,  as  not  to  know  tlie  nature  and 
quality  of  the  act  he  was  doing  ;  or,  if  he  did  know  it,  that  he  did  not 
know  he  was  doing  what  was  wrong. ^  Tlie  mode  of  ])utting  the 
latter  part  of  the  question  to  the  jury  on  these  occasions  has  gener- 
ally been,  whether  the  accused  at  the  time  of  doing  the  act,  knew 
the  difference  between  right  and  wrong  :  which  mode,  though  rarely, 
if  ever,  leading  to  any  mistake  with  the  jury,  is  not,  as  we  conceive, 
so  accurate,  when  put  generally  and  in  the  abstract,  as  when  put  with 
reference  to  the  party's  knowledge  of  right  and  wrong  in  respect  to 
the  very  act  with  which  he  is  charged.  If  the  question  were  to  be 
put  as  to  the  knowledge  of  the  accused  solely  and  exclusively  with 
reference  to  the  law  of  the  land,  it  miglit  tend  to  confound  the  jury, 
by  inducing  them  to  believe  that  an  actual  knowledge  of  the  law  of 
the  land  was  essential  in  order  to  lead  to  a  conviction  ,  whereas  the 
law  is  administered  upon  the  principle  that  every  one  must  be  taken 
conclusively  to  know  it,  without  proof  that  he  does  know  it.  If  the 
accused  was  conscious  that  the  act  was  one  which  he  ought  not  to  do, 
and  if  that  act  was  at  the  same  time  contrary  to  the  law  of  the  land, 
he  is  punishable  ;  and  the  usual  course  therefore  has  been  to  leave 
the  question  to  the  jury,  whether  the  party  accused  had  a  sufficient 
degree  of  reason  to  know  that  he  was  doing  an  act  that  was  wrong ; 
and  this  course  we  think  is  correct,  accompanied  with  such  observa- 
tions and  explanations  as  the  circumstances  of  each  particular  case 
may  require. 

The  fourth  question  which  your  Lordships  have  proposed  to  us  is 
this:  "If  a  person  under  an  insane  delusion  as  to  existing  facts 
commits  an  offence  in  consequence  thereof,  is  he  thereby  excused  ? " 
To  which  question  the  answer  must  of  course  depend  on  the  nature 
of  the  delusion  ;  but  making  the  same  assumption  as  we  did  before, 
namely,  that  he  labors  under  such  partial  delusions  only,  and  is  not 
in  other  respects  insane,  we  think  he  must  be  considered  in  the  same 

1  "  I  think  that  any  one  would  fall  within  the  description  in  question  who  was 
deprived  by  disease  affecting  the  mind  of  the  power  of  passing  a  rational  judgment  on 
the  moral  character  of  the  act  which  he  meant  to  do.  Suppose,  for  Instance,  that  by 
reason  of  disease  of  the  brain  a  man's  mind  is  filled  with  delusions  which,  if  true, 
would  not  justify  or  excuse  his  proposed  act,  but  which  in  themselves  are  so  wild  and 
astonishing  as  to  make  it  impossible  for  him  to  reason  about  them  calmly,  or  to 
reason  calmly  on  matters  connected  with  them.  Suppose,  too,  that  the  succession  of 
insane  thoughts  of  one  kind  and  another  is  so  rapid  as  to  confuse  him  ;  and  finally, 
suppose  that  his  will  is  weakened  by  his  disease,  that  he  is  unequal  to  the  effort  of 
calm  sustained  thought  upon  any  subject,  and  especially  upon  subjects  connected  with 
his  delusion  ;  can  he  be  said  to  know  or  have  a  capacity  of  knowing  that  the  act  which 
he  proposes  to  do  is  wrong  ?  I  should  say  he  could  not."  2  Stephen  Hist.  Crim, 
Law.  164.  —  Ed 


SKCT.  I.]  REGINA    V.    II.VYNES.  329 

situation  as  to  responsibility  as  if  the  facts  with  respect  to  which  the 
delusion  exists  were  real.  For  example,  if  under  the  influence  of  his 
delusion  he  supposes  another  man  to  be  in  the  act  of  attempting  to 
take  away  his  life,  and  he  kills  that  man,  as  he  supposes,  in  self- 
defence,  he  would  be  exempt  from  punishment.  Tf  his  delusion  was 
that  the  deceased  had  inflicted  a  serious  injury  to  his  character  and 
fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment.^ 


REGINA  V.  HAYNES. 

Winchester  Assizes.     1859. 

[Reported   I  Foster  <j-  Finlaijson,  666.] 

The  prisoner,  a  soldier,  was  charged  with  the  murder  of  Mary 
MacGowan,  at  the  camp  at  Aldershott. 

The  deceased  was  an  "  unfortunate  woman"  with  whom  the  prisoner 
had  been  intimate,  and  was  on  the  most  friendly  terms  up  to  the 
moment  of  the  commission  of  the  offence.  No  motive  was  assigned 
for  the  perpetration  of  the  act ;  and  general  evidence  was  given  that 
the  prisoner,  while  in  Canada,  having  seduced  a  young  woman  under 
a  promise  of  marriage,  which  he  had  been  unable  to  fulfil  by  reason 
of  his  regiment  having  been  ordered  home,  his  mind  had  been  much 
affected  by  the  circumstance. - 

Bramwell,  B.,to  the  jury.  As  to  the  defence  of  insanity  set  up 
for  the  prisoner,  I  will  read  you  what  the  law  is  as  stated  by  the  judges 
in  answer  to  questions  put  to  them  by  the  House  of  Lords.  {Having 
done  so.)  It  has  been  urged  for  the  prisoner  that  you  should  acquit 
him  on  the  ground  tliat,  it  being  impossible  to  assign  any  motive  for 
the  perpetration  of  the  offence,  he  must  have  been  acting  under  what 
is  called  a  powerful  and  irresistible  influence  or  homicidal  tendency. 
But  I  must  remark  as  to  that  that  the  circumstance  of  an  act  being 
apparently  motiveless  is  not  a  ground  from  which  you  can  safely  infer 

1  The  answer  to  the  fifth  question  is  omitted.  Maule,  J.  delivered  a  separate 
opinion,  which  he  prefaced  by  stating  that  he  felt  great  difficulty  in  answering  the 
questions  :  first,  because  they  did  not  appear  to  arise  out  of  a  particular  case  which 
might  explain  or  limit  the  generality  of  their  terms  ;  secondly,  because  he  had  hea.d 
no  argument  on  the  subject  of  the  questions  ;  and  thirdly,  from  ^  fear  that  the  an- 
swers  might  embarrass  the  administration  of  justice,  when  they  should  be  citea  in 
criminal  trials.  In  reply  to  the  first  question  he  said  that  "  to  render  a  V^^^^'^^'^^ 
sponsible  for  crime  on  account  of  unsoundness  of  mind,  the  unsoundness  should  be 
such  as  renders  him  incapable  of  knowing  right  from  wrong.  In  reply  to  tie 
second  and  third  questions,  he  said  that  the  matters  referred  to  in  them  were  entirely 
within  the  discretion  of  the  judge  trying  the  case.  To  the  fourth  question  he  gave 
the  same  answer  as  to  the  first.  —  Ed. 

■  Part  of  the  case,  relating  to  another  point,  is  omitted. 


330  COMMONWEALTH    V.    EOGERS.  [CHAP.  V. 

the  existence  of  such  an  influence.  Motives  exist  unknown  and  innu- 
merable which  might  prompt  the  act.  A  morbid  and  restless  (but 
resistible)  thirst  for  blood  would  itself  be  a  motive  urging  to  such  a 
deed  for  its  own  relief  ;  but  if  an  influence  be  so  powerful  as  to  be 
termed  irresistible,  so  much  the  more  reason  is  there  why  we  should 
not  withdraw  any  of  the  safeguards  tending  to  counteract  it.  There 
are  three  powerful  restraints  existing,  all  tending  to  the  assistance  of 
the  person  who  is  suffering  under  such  an  influence,  —  the  restraint  of 
veligion,  the  restraint  of  conscience,  and  the  restraint  of  law.  But  if 
Uie  influence  itself  be  held  a  legal  excuse,  rendering  the  crime  dispun- 
ishable, you  at  once  withdraw  a  most  powerful  restraint,  —  that  for- 
bidding and  punishing  its  perpetration.  We  must  therefore  return  to 
the  simple  question  you  have  to  determine,  —  did  the  prisoner  know 
the  nature  of  the  act  he  was  doing;  and  did  he  know  that  he  was 
doing  what  was  wrong?  Guilty.    Sentence,  death. 

The  prisoner  was  reprieved. 


COMMONWEALTH   v.  ROGERS. 
Supreme  Judicial  Court  of  Massachusetts.    1844. 

[Reported  7  Metculf,  500.] 

The  defendant  was  indicted  for  the  murder  of  Charles  Lincoln, 
Junior,  warden  of  the  state  prison,  on  the  15th  of  June,  1843.^ 

The  evidence  was  full  and  uncontradicted  that  the  defendant,  at 
the  time  alleged  in  the  indictment,  was  a  prisoner  in  the  state  prison, 
and  then  and  there  killed  the  warden  of  the  prison  by  stabbing  him  in 
the  neck  with  a  knife.  The  sole  ground  on  which  the  defendant's 
counsel  placed  his  defence  was  that  he  was  insane  when  he  committed 
the  homicide  ;  and  most  of  the  evidence,  on  both  sides,  related  to  this 
single  point.  The  superintendents  of  several  insane  hospitals  were 
witnesses  in  the  case,  and  their  testimony  tended  strongly  to  prove 
that  the  defendant,  at  the  time  of  the  homicide,  was  laboring  under 
that  species  of  insanity  which  is  hereinafter  commented  on  by  the 
chief  justice  in  the  charge  of  the  court  to  the  jury. 

The  opinion  of  the  court  on  the  law  of  the  case  was  given  in  the 
following  charge  to  the  jury  by 

Shaw,  C.  J.  In  order  to  constitute  a  crime,  a  person  must  have 
intelligence  and  capacity  enough  to  have  a  criminal  intent  and  pur- 
pose ;  and  if  his  reason  and  mental  powers  are  either  so  deficient  that 
he  has  no  will,  no  conscience  or  controlling  mental  power,  or  if, 
through  the  overwhelming  violence  of  mental  disease  his  intellectual 

1  Part  of  the  ease,  not  involving  a  question  of  insanity,  is  omitted. 


SECT.  I.]  COMMONWEALTH    V.    KOGKRS.  331 

power  is  for  the  time  obliterated,  he  is  not  a  responsible  moral  agent, 
and  is  not  punishable  for  criminal  acts. 

But  these  are  extremes  easily  distinguished,  and  not  to  be  mistaken. 
The  difficulty  lies  between  these  extremes,  in  the  cases  of  partial  insan- 
ity, where  tlie  mind  may  be  clouded  and  weakened,  but  not  incapable 
of  remembering,  reasoning,  and  judging,  or  so  perverted  by  insane 
delusion  as  to  act  under  false  impressions  and  influences.  In  these 
cases,  the  rule  of  law,  as  we  understand  it,  is  this  :  A  man  is  not  to 
be  excused  from  responsibility,  if  he  has  capacity  and  reason  sufficient 
to  enable  him  to  distinguish  between  right  and  wrong  as  to  the  par- 
ticular act  he  is  then  doing,  —  a  knowledge  and  consciousness  that  the 
act  he  is  doing  is  wrong  and  criminal,  and  will  subject  him  to  punish- 
ment. In  order  to  be  responsible,  he  must  have  sufficient  power  of 
memory  to  recollect  the  relation  in  which  he  stands  to  others,  and  in 
which  others  stand  to  him  ;  that  the  act  he  is  doing  is  contrary  to  the 
plain  dictates  of  justice  and  right,  injurious  to  others,  and  a  violation 
of  the  dictates  of  duty. 

On  the  contrary,  although  he  may  be  laboring  under  partial  insanity, 
if  he  still  understands  the  nature  and  character  of  his  act,  and  its  con- 
sequences ;  if  he  has  a  knowledge  that  it  is  wrong  and  criminal,  and  a 
mental  power  sufficient  to  apply  that  knowledge  to  his  own  case,  and 
to  know  that,  if  he  does  the  act  he  will  do  wrong  and  receive  pun- 
ishment, —  such  partial  insanity  is  not  sufficient  to  exempt  him  from 
responsibility  for  criminal  acts. 

If,  then,  it  is  proved,  to  the  satisfaction  of  the  jury,  that  the  mind  of 
the  accused  was  in  a  diseased  and  unsound  state,  the  question  will  be 
whether  the  disease  existed  to  so  high  a  degree  that  for  the  time  being 
it  overwhelmed  the  reason,  conscience,  and  judgment,  and  whether 
the  prisoner,  in  committing  the  homicide,  acted  from  an  irresistible 
and  uncontrollable  impulse.  If  so,  then  the  act  was  not  the  act  of 
a  voluntary  agent,  but  the  involuntary  act  of  the  body,  without  the 
concurrence  of  a  mind  directing  it. 

The  character  of  the  mental  disease  relied  upon  to  excuse  the  accused 
in  this  case  is  partial  insanity,  consisting  of  melancholy,  accompanied 
by  delusion.  The  conduct  may  be  in  many  respects  regular,  the  mind 
acute,  and  the  conduct  apparently  governed  by  rules  of  propriety,  and 
at  the  same  time  there  may  be  insane  delusion  by  which  the  mind  is 
perverted.  The  most  common  of  these  cases  is  that  of  monomania,  when 
the  mind  broods  over  one  idea  and  cannot  be  reasoned  out  of  it.  This 
may  operate  as  an  excuse  for  a  criminal  act  in  one  of  two  modes  : 
1.  Eitlier  the  delusion  is  such  that  the  person  under  its  influence  has  a 
real  and  firm  belief  of  some  fact,  not  true  in  itself,  but  which,  if  it 
were  true,  would  excuse  his  act,  —  as  where  the  belief  is  that  the  party 
killed  had  an  immediate  design  upon  his  life,  and  under  that  belief 
the  insane  man  kills  in  supposed  self-defence.  A  common  instance  is 
where  he  fully  believes  that  the  act  he  is  doing  is  done  by  the  immedi- 
ate command  of  God,  and  he  acts  under  the  delusive  but  sincere  belief 


332  COMMONWEALTH    V.    ROGEKS.  [CHAP,  V. 

that  what  he  is  doing  is  by  the  command  of  a  superior  power  which 
supersedes  all  human  laws,  and  the  laws  of  nature;  2.  Or  this  state 
of  delusion  indicates  to  an  experienced  person  that  the  mind  is  in  a 
diseased  state  ;  that  the  known  tendency  of  that  diseased  state  of  the 
mind  is  to  break  out  into  sudden  paroxysms  of  violence,  venting  itself 
in  homicide  or  other  violent  acts  towards  friend  or  foe  indiscriminately ; 
so  that,  although  there  were  no  previous  indications  of  violence,  yet 
the  subsequent  act,  connecting  itself  with  the  previous  symptoms  and 
indications,  will  enable  an  experienced  person  to  say  that  the  outbreak 
was  of  such  a  character  that  for  the  time  being  it  must  have  overborne 
memory  and  reason  ;  that  tlie  act  was  the  result  of  the  disease  and 
not  of  a  mind  capable  of  choosing ;  in  short,  that  it  was  the  result  of 
uncontrollable  impulse,  and  not  of  a  person  acted  upon  by  motives, 
and  governed  by  the  will. 

The  questions,  then,  in  the  present  case,  will  be  these  :  1.  Was  there 
such  a  delusion  and  hallucination?  2.  Did  the  accused  act  under  a 
false  but  sincere  belief  that  the  warden  had  a  design  to  shut  him  up, 
and,  under  that  pretext,  destroy  his  life  ;  and  did  he  take  this  means 
to  prevent  it?  3.  Are  the  facts  of  sucli  a  character,  taken  in  connec- 
tion with  the  opinions  of  the  professional  witnesses,  as  to  induce  the 
jury  to  believe  that  the  accused  had  been  laboring  for  several  days 
under  monomania,  attended  witli  delusion  ;  and  did  this  indicate  such 
a  diseased  state  of  the  mind  that  the  act  of  killing  the  warden  was  to 
be  considered  as  an  outbreak  or  paroxysm  of  disease,  which  for  the 
time  being  overwhelmed  and  superseded  reason  and  judgment,  so  that 
the  accused  was  not  an  accountable  agent? 

If  such  was  the  case,  the  accused  is  entitled  to  an  acquittal ;  otlier- 
wise,  as  the  evidence  proves  beyond  all  doubt  tlie  fact  of  killing, 
witliout  provocation,  by  the  use  of  a  deadly  weapon,  and  attended  with 
circumstances  of  violence,  cruelty,  and  barbarity,  he  must  undoubtedly 
be  convicted  of  wilful  murder. 

The  ordinary  presumption  is  that  a  person  is  of  sound  mind  until 
the  contrary  appears  ;  and  in  order  to  shield  one  from  criminal  respon- 
sibility, the  presumption  must  be  rebutted  by  proof  of  the  contrai-y, 
satisfactory  to  the  jury.  Such  proof  may  arise,  either  out  of  the  evi- 
dence offered  by  the  prosecutor  to  establish  the  case  against  the  accused, 
or  from  distinct  evidence,  offered  on  his  part ;  in  either  case,  it  must 
be  sutHcieut  to  establish  the  fact  of  insanity  ;  otherwise,  the  presump- 
tion will  stand. 

The  jury,  after  being  in  consultation  several  hours,  came  into  court, 
and  asked  instructions  upon  these  two  questions  :  "  Must  the  jury  be 
satisfied,  beyond  a  doubt,  of  the  insanity  of  the  prisoner,  to  entitle 
him  to  an  acquittal  ?  And  what  degree  of  insanity  will  amount  to  a 
justification  of  the  offence?" 

In  answer  to  the  first  of  these  questions,  the  chief  justice  repeated 
his  former  remarks  on  the  same  point,  and  added  that  if  the  prepon- 


SECT.  I.]  STATK    V.    I.ICHAKDS.  333 

derance  of  the  evidence  was  in  favor  of  the  insanity  of  the  prisoner, 
the  jury  would  be  authorized  to  find  liim  insane.  In  answer  to  the 
second  question,  the  cliief  justice  added  nothing  to  the  instructions 
which  he  had  previously  given. 

The  jury  afterwards  returned  a  verdict  of  "  Not  guilty,  by  reason  of 
insanity."  ^ 


STATE  V.   RICHARDS. 
Superior  Court,  Connecticut.     1873. 

[Reported  39  Connecticut,  591.] 

Information  for  burning  a  barn  ;  brought  to  the  Superior  Court  for 
Windham  County  and  tried  to  the  jur^-,  at  its  August  term,  1873,  on 
the  plea  of  not  guilty,  before  Seymour,  J. 

The  defence  was  that  the  prisoner  had  not  sufficient  mental  capacity 
to  be  criminall}-  responsible  for  the  act.  The  charge  of  the  judge, 
which  sufficiently  states  the  facts  of  the  case,  was  as  follows  :  — 

Seymour,  J.  The  evidence  seems  ample  to  warrant  you  in  finding 
that  the  burning  complained  of  was  caused  bj'  the  prisoner.  Your 
attention  has  been  turned  raainl3'  to  the  question  whether  the  act  was 
done  with  the  felonious  intent  charged,  and  this  question  depends 
mainly  upon  another,  whether  the  accused  has  sufficient  mental  capa 
city  to  warrant  us  in  imputing  to  him  a  felonious  intent. 

That  he  is  considerably  below  par  in  intellect  is  apparent  to  us  all 
This  is  indicated  bj'  his  countenance  and  general  appearance. 

The  same  thing  is  indicated  by  his  extraordinary'  conduct  at  th« 
fire.  As  the  flames  were  bursting  out  he  was  seen  on  all  fours  crawl 
ing  back  from  under  the  burning  barn,  with  no  clothing  upon  hiii 
.except  his  shirt  and  trousers.  The  day  was  excessively  cold.  He 
remained  some  half-hour,  thus  scantily  clothed,  gazing  stupidly  at  the 
blaze,  until  ordered  into  the  house.  All  this  took  place  in  broad  day 
light,  in  plain  view  of  Mr.  Gallup's  house. 

But  it  is  undoubtedly  true,  as  the  attorney  for  the  state  contends 
that  mere  inferiority  of  intellect  is  no  answer  to  the  prosecution.  Wt 
are.  therefore,  called  upon  in  this  case  to  decide  an  interesting  and 
difficult  question,  to  wit,  whether  the  accused  has  sufficient  mind  to 
be  held  responsible  as  a  criminal. 

1  "To  punish  a  homicide,  coiiimitted  by  the  insane  victim  of  such  delusion,  and 
■under  its  resistless  influence,  wouhl  be  punishing  for  what  every  other  man  in  the  same 
condition  would  ever  do,  in  defiance  of  all  penal  consequences ;  and,  therefore,  such 
punishment  would  be  useless  and  inconsistent  with  the  preventive  aim  of  all  criminal 
jurisprudence."  —  Robertson,  J.,  in  Smith  v.  Com.,  1  Duv.  224. 

"Whether  passion  or  insnnity  was  the  ruling  force  and  controlling  agency  which 
led  to  the  homicide,  —  in  other  words,  whether  the  defendant's  act  was  the  insane  act 
of  an  unsound  mind,  or  the  outburst  of  violent,  reckless,  and  uncontrolled  passion,  in 
a  mind  not  diseased,  —  is  the  practical  question  which  the  jury  should  be  told  to  deter- 
mine." —  Dillon,  C.  J.,  in  State  v.  Felter,  25  Iowa,  67.  —  Ed. 


334  STATE   V.    RICHARDS.  [CHAP.    V. 

He  is  not  a  mere  idiot,  nor  does  he  appear  to  be  a  lunatic.  He 
suffers  from  want  of  mind  rather  than  from  derangement  or  delusion, 
and  the  question  is  whether  the  want  of  mind  is  such  as  to  entitle  him 
to  acquittal  on  the  ground  of  what  in  law  is  termed  dementia. 

This  inquiry  is  attended  with  inherent  difficulties.  Our  knowledge 
of  our  own  minds  is  imperfect :  our  knowledge  of  the  precise  mental 
condition  of  another  is  necessarily  still  more  imperfect.  We  as  triers 
are  obliged  to  rely  upon  the  evidence  furnished  us  by  witnesses  whose 
means  of  knowledge  are  limited,  and  who  find  great  difficulty  in  com- 
municating to  us,  on  a  subject  of  this  nature,  what  they  do  know. 

Our  principal  embarrassment  arises,  however,  from  the  want  of  a 
definite  measure  of  mental  capacity.  Eminent  judges  and  learned 
commentators  have  attempted  to  furnish  rules  and  tests  for  the  guid- 
ance of  triers  in  cases  of  this  kind,  but  upon  examination  these  rules 
and  tests  turn  out  to  be  imperfect  and  unsatisfactory. 

It  was  formerly  thought  that  the  jury  might  properly  convict  if  the 
accused  had  any  sense  of  right  and  wrong,  or  if  he  was  aware  that 
punishment  would  follow  the  commission  of  an  offence. 

But  children  of  very  tender  years  have  some  sense  of  right  and 
wrong,  and  fully  understand  that  punishment  will  follow  transgression. 
Such  children  are  subjected  by  their  parents  to  discipline,  and  are  by 
gentle  punishments  restrained  from  wrong-doing;  but  our  sense  of 
humanity  would  be  greatly  shocked  at  the  thought  of  subjecting  chil- 
dren to  the  penalties  of  statute  law  because  some  sense  of  right  and 
wrong  and  fear  of  punishment  had  been  developed  in  them. 

So,  again,  it  is  often  said  in  the  books  that  a  person  is  to  be  deemed 
responsible  for  crime  if  he  understands  the  consequences  and  effects  of 
the  act  laid  to  his  charge.  This  is  undoubtedly  and  obviously  true  if 
he  has  such  understanding  and  appreciation  of  consequences  as  per- 
iain  to  other  men.  But  if  he  has  less  of  it  than  is  common  to  men 
ill  general,  how  much  less  must  it  be  to  escape  responsibility? 

1  think  the  accused  had  some  knowledge  of  the  consequences  of  his 
acts.  He  probably  knew  that  by  igniting  a  match  and  throwing  it 
into  a  hay-mow  a  fire  would  be  kindled  and  that  the  barn  would 
thereby  be  consumed.  He  perhaps  also  had  some  appreciation  of  the 
loss  and  destruction  of  property  which  would  ensue. 

But  I  am  not  willing  to  say  that  some  knovvledge  of  consequences, 
however  faint  and  imperfect,  is  sufficient  to  warrant  you  in  convict- 
ing the  prisoner.  I  can  give  j'ou  no  precise  rule,  but  I  think  it 
clear  that  if  the  prisoner's  perception  of  consequences  and  effects 
was  only  such  as  is  common  to  children  of  tender  years  he  ought  to 
be  acquitted. 

And  this  leads  me  to  refer  to  the  rule  adopted  by  an  eminent  Eng- 
lish judge.  Lord  Hale.  He  reasoned  that,  inasmuch  as  children 
under  fourteen  years  of  age  are  prima  facie  incapable  of  crime,  im- 
beciles ought  not  to  be  held  responsible  criminally  unless  of  capacity 
equal  to  that  of  ordinarj"  children  of  that  age. 


SECT.  I.]  STATE    V.    RICHARDS.  335 

If  this  test  be  adopted,  the  prisoner  will  upon  the  testimony  be  en- 
titled to  an  acquittal.  The  princii)al  witnesses  for  the  prosecution  say 
that  he  is  inferior  in  intellect  to  children  of  ten  years  of  age,  and  sev- 
eral very  intelligent  witnesses  for  the  defence  testify  that  the}'  are 
acquainted  with  many  children  of  six  years  who  are  his  superiors  in 
mental  capacity. 

I  am  inclined  to  recommend  Lord  Hale's  rule  to  your  adoption, 
not  however  without  qualifications  which  1  think  it  important  to 
observe. 

And  first,  this  test,  like  all  others  which  I  know  of,  is  imperfect. 

Probablv  no  two  of  us  have  the  same  idea  of  the  capacity  of  children 
of  fourteen  years  of  age  ;  and  then  there  is  this  further  difficulty,  that 
there  can  be  no  accurate  comparison  in  detail  between  the  healthy  and 
properly  balanced,  though  immature,  mind  of  a  child,  and  the  un- 
healthy, abnormal,  and  shrivelled  intellect  of  an  imbecile.  The  com- 
parison therefore  is  only  of  the  general  result  in  their  respective 
appreciation  of  right  and  wrong  and  of  consequences  and  effects. 

This  further  consideration  ought  also  to  be  borne  in  mind ;  that 
though  in  modern  times  persons  under  fourteen  are  seldom  subjected 
to  the  penalties  of  the  criminal  code,  yet  in  law  children  between  seven 
and  fourteen  ma}-  be  subjects  of  punishment  if  they  are  siiown  to  be 
of  sufficient  capacity  to  commit  crimes.  In  applying  Lord  Hale's 
rule  therefore,  the  child  to  be  taken  as  the  standard  ought  not  to  be 
one  who  has  had  superior  advantages  of  education,  but  should  rather 
be  one  in  humble  life,  with  only  ordinary  training. 

And  after  all,  gentlemen,  you  see  that  I  can  furnish  you  with  no 
definite  measure  of  mental  capacit}*  to  apply  to  the  prisoner.  The 
whole  matter  must  be  submitted  to  your  sound  judgment.  You  wil". 
say  whether  the  prisoner  has  such  knowledge  of  right  and  wrong,  an(.'. 
such  appreciation  of  the  consequence  and  effects  of  his  acts,  as  to  be 
a  proper  subject  of  punishment.  Opinions  on  this  subject  have  been 
expressed  by  most  of  the  witnesses  who  have  testified.  These  opinionu 
depend  for  their  value  mainly  upon  the  facts  with  which  they  an; 
connected.  You  have  the  advantage  of  being  able  to  compare  witt. 
each  other  all  the  facts  which  have  been  brought  to  your  notice  bear- 
ing upon  the  prisoner's  mental  condition.  You  will  look  carefully  a; 
all  these  facts.  The  history  of  the  prisoner's  life  is  somewhat  signifi- 
cant. From  early  childhood  it  has  been  spent  in  almhouses,  sub- 
jected to  constant  constraint.  In  the  most  ordinary  acts  of  his  life  he 
has  been  governed  by  the  superior  will  of  others  to  whose  care  he 
has  been  committed.  He  has,  it  appears,  been  seldom  left  to  the 
free  guidance  of  his  own  judgment.  When  so  left,  he  seems  to  have 
acted  without  forecast,  under  the  pressure  of  immediate  wants  and 
impulses. 

If  you  acquit  the  prisoner  on  the  ground  of  want  of  mental  capacity 
you  will  so  say  in  your  verdict,  in  order  that  the  prisoner  may  in  that 
event  have   the  benefit  under  our  statute  of  a  home  where  he  will  be 


336  FLANAGAN   V.    PEOPLE.  [CHAP.  V. 

kindly  cared  for,   but  kept  under  such  restraints  as   to  prevent  his 
doing  injury  to  the  persons  or  property  of  others. 

The  jury  acquitted   tlie  prisoner,  stating  in  their  verdict  that  the 
acquittal  was  on  the  ground  of  want  of  mental  capacity.^ 


FLANAGAN  v.   PEOPLE. 
Court  of  Appeals  of  New  York.     1873. 

[Reported  52  Neiv  York,  467.] 

Andrews,  J.  '  The  judge,  among  other  things,  charged  the  jury  that, 
"to  establish  a  defence  on  the  ground  of  insanity,  it  must  be  clearly 
proven  that,  at  the  time  of  committing  the  act  (the  subject  of  the  in- 
dictment), the  party  accused  was  laboring  under  such  a  defect  of  reason 
from  disease  of  the  mind  as  not  to  know  the  nature  and  quality  of  the 
act  he  was  doing ;  and,  if  he  did  know  it,  that  he  did  not  know  he 
was  doing  wrong ; "  and  to  this  part  of  the  charge  the  prisoner,  by  his 
counsel,  excepted. 

The  part  of  the  charge  excepted  to  was  in  the  language  employed 
by  TiNDAL,  C.  J.,  in  McNaghten's  Case,  10  Clarke  &  Fin.  210,  in  the 
response  of  the  English  judges  to  the  questions  put  to  them  by  the 
House  of  Lords  as  to  what  instructions  should  be  given  to  the  jury,  on 
a  trial  of  a  prisoner  charged  with  crime,  when  the  insane  delusion  of 
the  pri-soner,  at  the  time  of  the  commission  of  the  alleged  act,  was 
interposed  as  a  defence. 

All  the  judges,  except  one,  concurred  in  the  opinion  of  Tindal,  C.  J., 
and  the  case  is  of  the  highest  authority ;  and  the  rule  declared  in  it  has 
been  adhered  to  by  the  English  courts. 

Maule,  J.,  gave  a  separate  opinion,  in  which  he  declared  that,  to 
render  a  person  irresponsible  for  crime  on  account  of  unsoundness  of 
mind,  the  unsoundness  should,  according  to  the  law,  as  it  has  long  been 
understood  and  held,  be  such  as  to  render  him  incapable  of  knowing 
right  from  wrong. 

In  the  case  of  The  People  y.  Piodine,  4  Denio,  9,  the  language  of 
IiNDAL,  C.  J.,  in  the  McNaghten  Case,  was  quoted  and  approved ;  and 
Beardsley,  J.,  said  :  "  Where  insanity  is  interposed  as  a  defence  to  an 
indictment  for  an  alleged  crime,  the  inquiry  is  always  brought  down 
to  the  single  question  of  a  capacity  to  distinguish  between  right  and 
wrong  at  the  time  the  act  was  done." 

The  rule  was  reaffirmed  in  the  case  of  Willis  v.  The  People,  32  N.  Y., 
717,  and  it  must  be  regarded  as  the  settled  law  of  this  State,  that  the 
test  of  responsibility  for  criminal  acts,  where  unsoundness  of  mind  is 
interposed  as  a  defence,  is  the  capacity  of  the  defendant  to  distinguish 

1  See  Wartena  v.  State,  105  Ind.  445,  5  N.  E.  20.  —  Ed. 


SECT.  I.l  PARSONS  V.    STATE,  337 

between  right  and  wrong  at  the  time  of  and  with  respect  to  the  act 
which  is  the  subject  of  the  inquiry-. 

We  are  asked  in  this  case  to  introduce  a  new  clement  into  liie  rule 
of  criminal  responsibilily  in  cases  of  alleged  insanity,  and  to  hold  that 
the  power  of  choosing  right  from  wrong  is  as  essential  to  legal  respon- 
sibilit}'  as  the  capacit}*  of  distinguishing  between  them  ;  and  that  the 
absence  of  the  former  is  consistent  with  the  presence  of  the  latter. 

The  argument  proceeds  upon  the  theory  that  there  is  a  form  of 
insanity  in  whicli  the  faculties  are  so  disordered  and  deranged  that  a 
man,  tliough  he  perceives  the  moral  quality  of  his  acts,  is  unable  to 
control  them,  and  is  urged  by  some  mysterious  pressure  to  the  com- 
mission of  acts,  the  consequences  of  which  he  anticipates  but  cannot 
avoid. 

Whatever  medical  or  scientific  authorit}'  there  may  be  for  this  view, 
it  has  not  been  accepted  bj'  courts  of  law. 

The  vagueness  and  uncertaint}'  of  the  inquiry  which  would  be  opened, 
and  the  manifest  danger  of  introducing  the  limitation  claimed  into  the 
rule  of  responsibility  in  cases  of  crime,  may  well  cause  courts  to  pause 
before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of  the 
will  and  conscience  ;  and  the  rule  suggested  would  be  the  cover  for  the 
commission  of  crime  and  its  justification.  The  doctrine  that  a  criminal 
act  may  be  excused  upon  the  notion  of  an  irresistible  impulse  to  com- 
mit it,  where  the  offender  has  the  ability-  to  discover  his  legal  and  moral 
duty  in  respect  to  it,  has  no  place  in  the  law.  Rolfe,  B.,  in  Rogers  v. 
Allunt,  where,  on  the  trial  of  an  indictment  for  poisoning,  the  defend- 
ant was  alleged  to  have  acted  under  some  moral  influence  which  he 
could  not  resist,  said  :  "  Every  crime  was  committed  under  an  influence 
of  such  a  description  ;  and  the  object  of  the  law  was  to  compel  people 
to  control  these  influences." 

Judgment  affirmed. 


PARSONS   V.   STATE. 
Supreme  Court  of  Alabama.     1886. 

[Reported  81  ^1/a.  577.] 

SojiERViLLE,  J.^  In  this  case  the  defendants  have  been  convicted  of 
the  murder  of  Bennett  Parsons,  bj'  shooting  him  witli  a  gun,  one  of  the 
defendants  being  the  wife  and  the  other  the  daughter  of  the  deceased. 
The  defence  set  up  in  the  trial  was  the  plea  of  insanitv,  the  evidence 
tending  to  show  that  the  daughter  was  an  idiot,  and  the  mother  and 
wife  a  lunatic,  subject  to  insane  delusions,  and  that  the  killing  on  her 
part  was  the  offspring  and  product  of  those  delusions. 

^  Part  only  of  the  opinion  is  given.  The  dissenting  opinion  of  Stoxe,  C.  J.,  is 
omitted. 


338  PAKSONS  V.    STATE.  [CHAP.  V. 

The  rulings  of  the  court  raise  some  questions  of  no  less  difficulty 
than  of  interest,  for,  as  observed  by  a  distinguished  American  judge, 
"of  all  medico-legal  questions,  those  connected  with  insanity  are  the 
most  difficult  and  perplexing,"  (Per  Dillon,  C.  J.,  in  State  v.  Felter, 
25  Iowa,  67.)  Jt  has  become  of  late  a  matter  of  comment  among  intel- 
ligent men,  including  the  most  advanced  thinkers  in  the  medical  and 
legal  professions,  that  the  deliverances  of  the  law  courts  on  this  branch 
of  our  jurisprudence  have  not  heretofore  been  at  all  satisfactory,  either 
in  the  soundness  of  their  theories,  or  in  their  practical  application. 
The  earliest  English  decisions,  striving  to  establish  rules  and  tests  on 
the  subject,  including  alike  the  legal  rules  of  criminal  and  civil  respon- 
sibilit}-,  and  the  supposed  tests  of  the  existence  of  the  disease  of  insanity 
itself,  are  now  admitted  to  have  been  deplorably  erroneous,  and,  to  say 
nothing  of  their  vacillating  character,  have  long  since  been  abandoned. 
The  views  of  the  ablest  of  the  old  text  writers  and  sages  of  the  law 
were  equally  confused  and  uncertain  in  the  ti'eatment  of  these  subj'^cts, 
and  they  are  now  entirely  exploded.  Time  was  in  the  history  of  our 
laws  that  the  veriest  lunatic  was  debarred  from  pleading  his  providen- 
tial affliction  as  a  defence  to  his  contracts.  It  was  said,  in  justification 
of  so  absurd  a  rule,  that  no  one  could  be  permitted  to  stultify  himself 
by  pleading  his  own  disability.  So  great  a  jurist  as  Lord  Coke,  in  his 
attempted  classification  of  madmen,  laid  down  the  legal  rule  of  criminal 
responsibility  to  be  that  one  should  "•  ivliolhj  have  lost  his  memory  and 
understanding  ;  "  as  to  which  Mr.  Erskine,  when  defending  Hadfield 
for  shooting  the  king,  in  the  year  1800,  justly  observed  :  "No  such 
madman  ever  existed  in  the  world."  After  this  great  and  historical 
case,  the  existence  of  delusion  promised  for  a  while  to  become  the 
sole  test  of  insanity,  and  acting  under  the  duress  of  such  delusion  was 
recognized  in  efiect  as  the  legal  rule  of  responsibility.  Lord  Kenyon, 
after  ordering  a  verdict  of  acquittal  in  that  case,  declared  with  empha- 
sis that  there  was  "•  no  doubt  on  earth  "  the  law  was  correctly  stated  in 
the  argument  of  counsel.  But,  as  it  w-as  soon  discovered  that  insanity 
often  existed  without  delusions,  as  well  as  delusions  without  insanity, 
this  view  was  also  abandoned.  Lord  Hale  had  before  declared  that  the 
rule  of  responsibility  was  measured  by  the  mental  capacity  possessed 
by  a  child  fourteen  3'ears  of  age  ;  and  Mr.  Justice  Tracy,  and  other 
judges,  had  ventured  to  decide  that,  to  be  non-punishalile  for  alleged 
acts  of  crime,  "a  man  must  be  totally  deprived  of  his  understanding 
and  memory,  so  as  not  to  know  what  he  was  doing,  no  more  than  au 
infant,  a  brute,  or  a  loild  beast.''  (Arnold's  Case,  16  How.  St.  Tr. 
764.)  All  these  rules  have  necessarily  been  discarded  in  modern  times 
in  the  light  of  the  new  scientific  knowledge  acquired  b}'  a  more  thor- 
ough study  of  the  disease  of  insanity.  In  Bellingham's  Case,  decided 
in  1812  by  Lord  Mansfield  at  the  Old  Bailey  (Coll.  on  Lun.  630),  the 
test  was  held  to  consist  in  a  knowledge  that  murder,  the  crime  there 
committed,  was  "against  the  laws  of  God  and  nature,"  thus  meaning 
au   ability  to  distinguish  between  right  and   wrong   in   the   abstract. 


SECT.  I.J  P ARSONS   V.   STATE.  339 

This  rule  was  not  adhered  to,  but  seems  to  have  been  modified  so  as  to 
malce  the  test  rather  a  knowledge  of  right  and  wrong  as  applied  to  the 
particular  act.  (Lawson  on  Insanity,  231,  §  7  et  seq).  The  great  lead- 
ing case  on  the  subject  in  England  is  McNaghtcn's  Case,  decided  in 
1843  before  the  English  House  of  Lords,  10  CI.  &  F.  200  ;  s.  c,  2  Law- 
son's  Cr.  Def.  150.  It  was  decided  by  the  judges  in  that  case  that,  in 
order  to  entitle  the  accused  to  acquittal,  it  must  be  clearly  proved  that, 
at  the  time  of  committing  the  offence,  he  was  laboring  under  such  a 
defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or,  if  he  did,  not  to  know  that  what  he 
was  doing  was  wrong.  This  rule  is  commonly  supposed  to  have  here- 
tofore been  adopted  by  this  court,  and  has  been  followed  by  the  general 
current  of  American  adjudications.  Boswell  v.  The  State,  63  Ala.  307  ; 
s.  c.  35  Amer.  Rep.  20  ;  s.  c  2  Lawson's  Cr.  Def.  352  ;  McAllister  v. 
State,  17  Ala.  434  ;  Lawson  on  Insanity,  219-221,  231. 

In  view  of  these  conflicting  decisions,  and  of  the  new  light  thrown 
on  the  disease  of  insanity  by  the  discoveries  of  modern  psychological 
medicine,  the  courts  of  the  country  may  well  hesitate  before  blindly 
following  in  the  unsteady  footsteps  found  upon  the  old  sandstones  of 
our  common  law  jurisprudence  a  centur}'  ago.  The  trial  court,  with 
prudent  propriety,  followed  the  previous  decisions  of  this  court,  the  cor- 
rectness of  which,  as  to  this  subject,  we  are  now  requested  to  review. 

We  do  not  hesitate  to  sa}'  that  we  re-open  the  discussion  of  this 
subject  with  no  httle  reluctance,  having  long  hesitated  to  disturb  our 
past  decisions  on  this  branch  of  the  law.  Nothing  could  induce  us  to 
do  so  except  an  imperious  sense  of  dut}',  which  has  been  excited  by 
u  protracted  investigation  and  study,  impressing  our  minds  with  the 
conviction  that  the  law  of  insanit}'  as  declared  by  the  courts  on  many 
points,  and  especially  the  rule  of  criminal  accountability,  and  the  aS" 
sumed  tests  of  disease  to  that  extent  which  confers  legal  irresponsi- 
bilit}',  have  not  kept  pace  with  the  progress  of  thought  and  discovery 
in  the  present  advanced  stages  of  medical  science.  Though  science 
has  led  the  way,  the  courts  of  England  have  declined  to  follow,  as 
shown  by  their  adherence  to  the  rulings  in  McNaghten's  Case,  em- 
phasized by  the  strange  declaration  made  by  the  Lord  Chancellor  of 
England,  in  the  House  of  Lords,  on  so  late  a  da}-  as  March  11,  1862, 
that  "  the  introduction  of  medical  opinions  and  medical  theories  into 
this  subject  has  proceeded  upon  the  vicious  principle  of  considering 
insanity  as  a  disease  !  " 

It  is  not  surprising  that  this  state  of  affairs  has  elicited  from  a 
learned  law  writer,  who  treats  of  this  subject,  the  humiliating  declara- 
tion that,  under  the  influence  of  these  ancient  theories,  ''  the  memorials 
of  our  jurisprudence  are  written  all  over  with  cases  in  which  those 
who  are  now  understood  to  have  been  insane  have  been  executed  as 
criminals."  1  Bish.  Cr.  Law  (7th  ed.)  §  390.  There  is  good  reason, 
both  for  this  fact  and  for  the  existence  of  unsatisfactory  rules  on  this 
•subject.     In  what  we  say  we  do  not  intend  to  give  countenance  to  ao 


340  PAKSONS   V.    STATE.  [CHAP.  V. 

quittals  of  criminals,  frequent  examples  of  whieli  have  been  witnessed 
in  modern  times,  based  on  the  doctrine  of  moral  or  emotional  insanit}^, 
unconnected  with  mental  disease,  which  is  not  3et  sufficientl}'  supported 
by  ps3'cholog3',  or  recognized  by  law  as  an  excuse  for  crime.  Boswell's 
case,  supra  ;  1  Whar.  Cr.  Law  (Dth  ed.),  §  43. 

In  ancient  times  lunatics  were  not  regarded  as  "unfortunate  suffer- 
ers from  disease,  but  rather  as  subjects  of  demoniacal  possession,  or  as 
self-made  victims  of  evil  passions."  The}'  were  not  cared  for  huraaneh- 
in  asylums  and  hospitals,  but  were  incarcerated  in  jails,  punished  with 
chains  and  stripes,  and  often  sentenced  to  death  b}'  burning  or  the 
gibbet.  When  put  on  their  trial,  the  issue  before  the  court  then  was 
not  as  now.  If  acquitted,  the}'  could  only  be  turned  loose  on  the  com- 
munity to  repeat  their  crimes  without  molestation  or  restraint.  They 
could  not  be  committed  to  liospitals,  as  at  tlie  present  day,  to  be  kept 
in  custody,  cared  for  b}'  medical  attention,  and  often  cured.  It  was  not 
until  the  beginning  of  the  present  centur}-  that  the  progress  of  Christian 
civilization  asserted  itself  by  the  exposure  of  the  then  existing  bar- 
barities, and  that  tlie  outcry  of  pliilanthropists  succeeded  in  ehciting 
an  investigation  of  the  British  Parliament  loolcing  to  their  suppression. 
Up  to  that  period  the  medical  treatment  of  the  insane  is  known  to  have 
been  conducted  upon  a  basis  of  ignorance,  inhumanity,  and  empiricism. 
Amer.  Cj'clopaedia,  vol.  ix.  (1874),  title,  Insanit}'.  Being  punished  for 
wickedness,  rather  than  treated  for  disease,  this  is  not  surprising.  The 
exposure  of  these  evils  not  only  led  to  the  establishment  of  that  mos 
beneficent  of  modern  civilized  charities,  the  Hospital  and  Asylum  for 
the  Insane,  but  also  furnished  hitherto  unequalled  opportunities  to  the 
medical  profession  of  investigating  and  treating  insanit}'  on  the  path- 
ological basis  of  its  being  a  disease  of  the  mind.  Under  these  new 
and  more  favorable  conditions  the  medical  jurisprudence  of  insanit}* 
has  assumed  an  entirel}'  new  phase.  The  nature  and  exciting  causes  of 
the  disease  have  been  thoroughly  studied  and  more  full}'  comprehended. 
The  result  is  that  the  "  right  and  wrong  test,"  as  it  is  sometimes  called, 
which,  it  must  be  remembered,  itself  originated  with  the  medical  pro- 
fession, in  the  mere  dawn  of  the  scientific  knowledge  of  insanity,  has 
been  condemned  by  the  great  current  of  modern  medical  authorities, 
who  believe  it  to  be  '"  founded  on  an  ignorant  and  imperfect  view  of 
the  disease."     Encyc.  Brit.  vol.  xv.  (9th  ed.),  title.  Insanity. 

The  question  then  presented  seems  to  be  whether  an  old  rule  of 
legal  responsil)ility  shall  be  adhered  to  based  on  theories  of  physicians 
promulgated  a  hundred  years  ago,  which  refuse  to  recognize  any  evi- 
dence of  insanity  except  the  single  test  of  mental  capacity  to  dis- 
tinguish right  and  wrong,  or  whether  the  courts  will  recognize  as  a 
possible  fact,  if  capable  of  proof  by  clear  and  satisfactory  testimony, 
the  doctrine,  now  alleged  by  those  of  the  medical  profession  who  have 
made  insanity  a  special  subject  of  investigation,  that  the  old  test  is 
wrong,  and  that  there  is  no  single  test  by  which  the  existence  of  the 
disease,  to  that  degree  which  exempts  from  punishment,  can  in  every 


SECT.  I.J  PARSONS    V.    STATE.  341 

case  be  infallibl}'  detected.  The  inquiry  must  not  be  unduly  obstructed 
by  the  doctrine  of  stare  decisis,  for  the  life  of  the  common  law  system 
and  the  hope  of  its  permanency  consist  largely  in  its  power  of  adap- 
tation to  new  scientific  discoveries,  and  the  requirements  of  an  ever 
advancing  civilization.  There  is  inherent  in  it  tlie  vital  principle  of 
juridical  evolution,  which  preserves  itself  by  a  constant  struggle  for 
approximation  to  the  highest  practical  wisdom.  It  is  not  like  the  laws 
of  the  Medes  and  Persians,  which  could  not  be  changed.  In  establish- 
ing any  new  rule,  we  should  strive,  however,  to  have  proper  regard  for 
two  opposite  aspects  of  the  subject,  lest,  in  the  words  of  Lord  Hale, 
"on  one  side  there  be  a  kind  of  inhumanit}- towards  the  defects  of 
human  nature  ;  or,  on  the  other,  too  great  indulgence  to  great  crimes." 

It  is  everywhere  admitted,  and  as  to  this  there  can  l)e  no  doubt, 
that  an  idiot,  lunatic,  or  other  person  of  diseased  mind,  wlio  is  afflicted 
to  such  extent  as  not  to  know  whether  he  is  doing  right  or  wrong,  is 
not  punishable  for  any  act  which  he  may  do  while  in  that  state. 

Can  the  courts  justly  say,  however,  that  the  onl}'  test  or  rule  of 
responsibility  in  criminal  cases  is  the  power  to  distinguish  right  from 
wrong,  whether  in  the  abstract,  or  as  applied^ to  the  particular  case? 
Or  may  there  not  be  insane  persons  of  a  diseased  brain,  who,  while 
capable  of  perceiving  the  difference  between  right  and  wrong,  are,  as 
matter  of  fact,  so  far  under  the  duress  of  such  disease  as  to  destro}'  the 
power  to  choose  between  right  and  wrong?  Will  the  courts  assume  as 
a  fact,  not  to  be  rebutted  b}'  an}-  amount  of  evidence,  or  any  new  dis- 
coveries of  medical  science,  that  there  is,  and  can  be,  no  such  state  of 
the  mind  as  that  described  by  a  writer  on  psychological  medicine,  as 
one  "  in  which  the  reason  has  lost  its  empire  over  the  passions,  and  the 
actions  by  which  the}'  are  manifested,  to  such  a  degree  that  the  indi- 
vidual can  neither  repress  the  former,  nor  abstain  from  the  latter "  ? 
Dean's  Med.  Jur.  497. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  subject  by 
separating  the  duty  of  the  juvy  from  that  of  the  court  in  the  trial  of  a 
case  of  this  character.  The  province  of  the  jury  is  to  determine  facts, 
that  of  the  court  to  state  the  law.  Tlie  rule  in  McNaghteu's  Case  arro- 
gates to  the  court,  in  legal  effect,  the  right  to  assert,  as  matter  of  law, 
the  following  propositions  :  — 

1.  That  there  is  but  a  single  test  of  the  existence  of  that  degree  of 
insanity,  such  as  confers  irresponsibility  for  crime. 

2.  That  there  does  not  exist  an}-  case  of  such  insanity  in  which  that 
single  test  —  the  capacity  to  distinguish  right  from  wrong  —  does  not 
appear. 

3.  That  all  other  evidences  of  alleged  insanity,  supposed  by  physicians 
and  experts  to  indicate  a  destruction  of  the  freedom  of  the  human  will 
and  the  irresistible  duress  of  one's  actions,  do  not  destroy  his  mental 
capacity  to  entertain  a  criminal  intent. 

The  whole  difficulty,  as  justly  said  by  the  Supreme  Judicial  Court  of 
New  Hampshire,  is  that  "courts  have  undertaken  to  declare  that  to 


342  PARSONS  V.    STATE.  [CHAP.  V 

be  law  which  is  matter  of  fact."  "  If"  observes  the  same  court,  "  the 
tests  of  insanity  are  matters  of  law,  the  practice  of  allowing  experts 
to  testify  what  they  are  should  be  discontinued  ;  if  they  are  matters 
of  fact,  the  judge  should  no  longer  testify  without  being  sworn  as  a 
witness,  and  showing  himself  to  be  qualified  to  testify  as  an  expert." 
State  V.  Pike,  49  N.  H.  39.9. 

We  first  consider  what  is  the  proper  legal  ride  of  responsibility  in 
crimifial  cases. 

No  one  can  deny  that  there  must  be  two  constituent  elements  of  legal 
responsibilit}'  in  the  commission  of  every  crime,  and  no  I'ule  can  be  just 
and  reasonable  which  fails  to  recognize  either  of  them  :  (1)  capacity 
of  intellectual  discrimination  ;  and  (2)  freedom  of  will.  Mr.  Wharton, 
after  recognizing  this  fundamental  and  obvious  principle,  observes : 
"  If  there  be  either  incapacit}-  to  distinguish  between  right  and  wrong 
as  to  the  particular  act,  or  delusion  as  to  the  act,  or  Inability  to  refrain 
from  doing  the  act,  there  is  no  responsibilit}'."  1  Whar.  Cr.  Law  (9th 
ed.),  §  33.  Says  Mr.  Bishop,  in  discussing  this  subject:  "There  can- 
not be,  and  there  is  not,  in  any  locality',  or  age,  a  law  punishing  men 
for  what  they  cannot  avoid."     1  Bish.  Cr.  Law  (7th  ed.),  §  3836. 

If,  therefore,  it  be  true,  as  matter  of  fact,  that  the  disease  of  insanity 
can,  in  its  action  on  the  human  brain  through  a  shattered  nervous 
organization,  or  in  any  other  mode,  so  affect  the  mind  as  to  subvert 
the  freedom  of  the  will,  and  thereby  destroy  the  power  of  the  victim  to 
choose  between  the  right  and  wrong,  although  he  perceive  it,  —  by  which 
we  mean  the  power  of  volition  to  adhere  in  action  to  the  right  and  abstain 
from  the  wrong,  — is  such  a  one  criminally  responsible  for  an  act  done 
under  the  influence  of  such  controlling  disease?  We  clearly  think  not; 
and  such  we  believe  to  be  the  just,  reasonable,  and  humane  rule  towards 
which  all  the  modern  authorities  in  this  country,  legislation  in  England, 
and  the  laws  of  other  civilized  countries  of  the  world,  are  gradually,  but 
surely  tending,  as  we  shall  further  on  attempt  more  fully  to  show. 

We  next  consider  the  question  as  to  the  jJ^'obable  existence  of  such  a 
disease.,  and  the  test  of  its  presence  in  a  given  case. 

It  will  not  do  for  the  courts  to  dogmatically  den}-  the  possible  exist- 
ence of  such  a  disease,  or  its  pathological  and  psychical  effects,  because 
this  is  a  matter  of  evidence,  not  of  law,  or  judicial  cognizance.  Its 
existence,  and  effect  on  the  mind  and  conduct  of  the  patient,  is  a  ques- 
tion of  fact  to  be  proved,  just  as  much  as  the  possible  existence  of 
cholera  or  yellow  fever  formerly  was  before  these  diseases  became  the 
subjects  of  common  knowledge,  or  the  effects  of  delirium  from  fever,  or 
intoxication  from  opium  and  alcoholic  stimulants  would  be.  The  courts 
could,  with  just  as  much  propriet}'  years  ago,  have  denied  the  existence 
of  the  Copernican  system  of  the  universe,  the  eflRcacy  of  steam  and 
electricity  as  a  motive  power,  or  the  possibilit}'  of  communication  in  a 
few  moments  between  the  continents  of  Europe  and  America  l)y  the 
magnetic  telegraj^h,  or  that  of  the  instantaneous  transmission  of  the 
human  voice  from  one  disttint  city  to  another  by  the  use  of  the  tele- 


SECT.  I.]  PARSONS   V.   STATE.  343 

phone.  These  are  scientific  facts,  first  discovered  by  experts  before 
becoming  matters  of  common  knowledge.  So,  in  like  manner,  must  be 
every  other  unknown  scientific  fact,  in  whatever  profession  or  depart- 
ment of  knowledge.  The  existence  of  such  a  cerebral  disease  as  that 
which  we  have  described  is  earnestly  alleged  by  the  superintendents  of 
insane  hospitals  and  other  experts  who  constantl}-  have  experimental 
dealings  with  the  insane,  and  the}'  are  permitted  every  day  to  so  testify 
before  juries.  The  truth  of  their  testimony  —  or  what  is  the  same  thing, 
the  existence  or  non-existence  of  such  a  disease  of  the  mind  —  in  each 
particular  case,  is  necessarily  a  matter  for  the  determination  of  the  jury 
from  the  evidence. 

So  it  is  equally  obvious  that  the  courts  cannot,  upon  any  sound  prin- 
ciple, undertake  to  say  what  are  the  invariable  or  infallible  tests  of  such 
disease.  The  attempt  has  been  repeatedly  made,  and  has  proved  a 
confessed  failure  in  practice.  "Such  a  test,"  sa^s  Mr.  Bishop,  "has 
never  been  found,  not  because  those  wdio  have  searched  for  it  have  not 
been  able  and  diligent,  but  because  it  does  not  exist."  1  Bish.  Cr.  Law 
(7th  ed.),  §  381.  In  this  conclusion.  Dr.  Ray,  in  his  learned  work  on 
the  Medical  Jurisprudence  of  Insanity,  fully  concurs.  Raj's  Med.  Jur. 
Ins.  p.  39.  The  symptoms  and  causes  of  insanit}'  are  so  variable,  and 
its  pathology  so  complex,  that  no  two  cases  may  be  just  alike.  "  The 
fact  of  its  existence,"  says  Dr.  Ra}',  ''  is  never  established  by  any  single 
diagnostic  symptom,  but  by  the  whole  body  of  symptoms,  no  particular 
one  of  which  is  present  in  ever}'  case."  Ray's  Med.  Jur.  of  Ins.  §  24. 
Its  exciting  causes  being  moral,  psychical,  and  phj'sical  are  the  especial 
subjects  of  specialists'  study.  What  effect  may  be  exerted  on  the  given 
patient  by  age,  sex,  occupation,  the  seasons,  personal  surroundings, 
hereditary  transmission,  and  other  causes  is  the  subject  of  evidence 
based  on  investigation,  diagnosis,  observation,  and  experiment.  Pecu- 
liar opportunities,  never  before  enjoyed  in  the  history  of  our  race,  are 
offered  in  the  present  age  for  the  ascertainment  of  these  facts,  by  the 
establishment  of  asylums  for  the  custody  and  treatment  of  the  insane, 
which  Christian  benevolence  and  statesmanship  have  substituted  for 
jails  and  gibbets.  The  testimony  of  these  experts  —  differ  as  they  may 
in  many  doubtful  cases  —  would  seem  to  be  the  best  which  can  be 
obtained,  however  unsatisfactory  it  may  be  in  some  respects. 

In  the  present  state  of  our  law,  under  the  rule  in  McNaghten's 
Case,  we  are  confronted  with  this  practical  difficulty,  which  itself  demon- 
strates the  defects  of  the  rule.  The  courts  in  effect  charge  the  juries, 
as  matter  of  law,  that  no  such  mental  disease  exists  as  that  often 
testified  to  by  medical  writers,  superintendents  of  insane  hot^pitals,  and 
other  experts,  — that  there  can  be  as  matter  of  scientific  f£Ot  no  cere- 
bral defect,  congenital  or  acquired,  which  destroys  the  patien.  s  power 
of  self-control,  his  Uberty  of  will  and  action,  provided  only  he  retains 
a  mental  consciousness  of  right  and  wrong.  The  experts  are  immedi- 
ately put  under  oath,  and  tell  the  juries  just  the  contrary,  as  matter  of 
evidence  ;   asserting  that  no  one  of  ordinary  intelligence  can  spend  an 


344  PARSONS   V.    STATE.  [CHAP.  V. 

hour  in  the  wards  of  an  insane  asylum  without  discovering  such  cases, 
and  in  fact  that  "  tlie  whole  management  of  such  asyhiras  presupposes 
a  knowledge  of  right  and  wrong  on  the  part  of  their  inmates."  Guy  & 
F.  on  Forensic  Med.  220.  Tlie  result  in  practice,  we  repeat,  is  that 
the  courts  charge  one  way,  and  the  jury,  following  an  alleged  higher 
law  of  humanity,  find  another  in  harmony  with  the  evidence. 

In  Bucknill  on  Criminal  Lunacy,  p.  59,  it  is  asserted  as  "  the  result 
of  observation  and  experience,  that  in  all  lunatics  and  in  the  most 
degraded  idiots,  whenever  manifestations  of  anv  mental  action  can  be 
educed,  the  feeling  of  right  and  wrong  ma}^  be  proved  to  exist." 

"  With  regard  to  this  test,"  says  Dr.  Russell  Reynolds,  in  his  work 
on  "The  Scientific  Value  of  the  Legal  Tests  of  Insanity,"  p.  34 
(London,  1872),  "I  may  say,  and  most  emphatically,  that  it  is  utterly 
ui.'iii-ustworthy,  because  untrue  to  the  obvious  facts  of  Nature." 

In  the  learned  treatise  of  Drs.  Bucknill  and  Tuke  on  ''  Psychological 
Medicine,"  p.  269  (4th  ed.  London,  1879),  the  legal  tests  of  respon- 
sibility are  discussed,  and  the  adherence  of  the  courts  to  the  right  and 
wrong  test  is  deplored  as  unfortunate,  the  true  principle  being  stated  to 
be  "  whether,  in  consequence  of  congenital  defect  or  acquired  disease, 
the  power  of  self-control  is  absent  altogether,  or  is  so  far  wanting  as  to 
render  the  individual  irresponsible."  It  is  observed  by  the  authors  : 
"■  As  has  again  and  again  been  shown,  the  unconsciousness  of  right 
and  wrijng  is  one  thing,  and  the  powerlessness  through  cerebral  defect 
or  disease  to  do  right  is  another.  To  confound  them  in  an  asylum 
would  have  the  effect  of  transferring  a  considerable  number  of  the 
inmates  thence  to  the  treadmill  or  the  gallows." 

Dr.  Peter  Bryce,  Superintendent  of  the  Alabama  Insane  Hospital  for 
more  than  a  quarter-century  past,  alluding  to  the  moral  and  disciplinary 
treatment  to  which  the  insane  inmates  are  subjected,  observes  :  '•  They 
are  dealt  with  in  this  institution,  as  far  as  it  is  practicable  to  do  so,  as 
rational  beings  ;  and  it  seldom  happens  that  we  meet  with  an  insane 
person  who  cannot  be  made  to  discern,  to  some  feeble  extent,  his  duties 
to  himself  and  others,  and  his  true  relations  to  society."  Sixteenth 
Annual  Rep.  Ala.  Insane  IIosp.  (1876),  p.  22;  Biennial  Rep.  (1886), 
pp.  12-18. 

Other  distinguished  writers  on  the  medical  jurisprudence  of  insanity 
have  expressed  like  views,  with  comparative  unanimity.  And  nowhere 
do  we  find  the  rule  more  emphatically  condemned  than  by  those  who 
have  the  practical  care  and  treatment  of  the  insane  in  the  various 
lunatic  asylums  of  every  civilized  country.  A  notable  instance  is  found 
in  the  following  resolution  unanimously  passed  at  the  annual  meeting 
of  the  British  Association  of  medical  officers  of  Asylums  and  Hospitals 
for  the  insane,  held  in  London,  July  14,  1864,  where  there  were  present 
fifty-four  medical  officers  :  — 

"  Resolved,  That  so  much  of  the  legal  test  of  the  mental  condition  of 
an  alleged  criminal  lunatic  as  renders  him  a  responsible  agent,  because 
he  knows  the  difference  between  right  and  wrong,  is  inconsistent  with 


SECT.  I.]  PARSONS   V.   STATE.  345 

the  fact,  well  known  to  every  member  of  this  meeting,  that  the  power 
of  distinguishing  between  right  and  wrong  exists  very  frequently  in 
those  who  are  undoubtedly  insane,  and  is  often  associated  with  dan- 
gerous and  uncontrolhible  delusions."  Judicial  Aspects  of  Insanity 
(Ordronaux,  1877),  42o— 124. 

These  testimonials  as  to  a  scientific  fact  are  recognized  by  intelligent 
men  in  the  affairs  of  everyday  business,  and  are  constantly  acted  on 
by  juries.  They  cannot  be  silently  ignored  by  judges.  Whether  estab- 
lished or  not,  there  is  certainly  respectable  evidence  tending  to  establish 
it,  and  this  is  all  the  courts  can  require. 

Nor  are  the  modern  law  writers  silent  in  their  disapproval  of  the 
alleged  test  under  discussion.  It  meets  with  the  criticism  or  condem- 
nation of  the  most  respectable  and  advanced  in  thought  among  tliem, 
the  tendency  being  to  incorporate  in  tlie  legal  rule  of  responsibility 
''not  only  the  knoioledge  of  good  and  evil,  but  the  power  to  choose  the 
one,  and  refrain  from  the  other."  Browne's  Med.  Juf.  of  Insanity, 
§§  13  et  seq.,  §  18  ;  Rav's  Med.  Jur.  §§  16-19  ;  Whart.  &  Stilles'  Med. 
Jur.  §  59;  1  Whart.  Cr.  Law  (9th  ed.),  §§  33,  43,  45;  1  Bish.  Cr. 
Law  (7th  ed.),  §  386  et  seq.  ^  Judicial  Aspects  of  Insanity  (Ordronaux), 
419  ;  1  Green.  Ev.  §  372  ;  1  Steph.  Hist.  Cr.  Law,  §  168;  Araer.  Law 
Rev.  vol.  iv.  (1869-70),  236  et  st.q. 

The  following  practicable  suggestion  is  made  in  the  able  treatise 
of  Balfour  Browne  above  alluded  to;  "In  a  case  of  alleged  insanit}', 
then,"  he  says,  ''  if  the  individual  suffering  from  enfeeblement  of  intel- 
lect, delusion,  or  any  other  form  of  mental  aberration,  was  looked  upon 
as,  to  the  extent  of  this  delusion,  under  the  influence  of  duress  (the 
dire  duress  of  disease),  and  in  so  far  incapacitated  to  choose  the  good 
and  eschew  the  evil,  in  so  far,  it  seems  to  us,"  he  continues,  "  would 
the  requirements  of  the  law  be  fulfilled  ;  and  in  that  way  it  would  afford 
an  opening,  by  the  evidence  of  experts,  for  the  proof  of  the  amount  of 
self-duress  in  each  individual  case  and  thus  alone  can  (he  criterion  of 
law  and  the  criterion  of  the  inductive  science  of  medical  psychology 
be  made  to  coincide:'     Med.  Jur,  of  Ins.  (Browne),  §  18. 

This,  in  our  judgment,  is  the  practical  solution  of  the  difficulty  before 
us,  as  it  preserves  to  the  courts  and  the  juries,  respectively,  a  harmo- 
nious field  for  the  full  assertion  of  their  time-honored  functions. 

So  great,  it  may  be  added,  are  the  embarrassments  growing  out  of 
the  old  rule,  as  expounded  by  the  judges  in  the  House  of  English  Lords, 
that,  in  March,  1874,  a  bill  was  brought  before  the  House  of  Commons, 
supposed  to  have  been  drafted  by  the  learned  counsel  for  the  Queen, 
Mr.  Fitzjames  Stephen,  which  introduced  into  the  old  rule  the  new 
element  of  an  absence  of  the  power  of  self-control,  produced  by  diseases 
affecting  the  mind  ;  and  this  proposed  alteration  of  the  law  was  cordially 
recommended  by  the  late  Chief  Justice  Cockburn,  his  only  objection 
being  that  the  principle  was  proposed  to  be  limited  to  the  case  of  homi- 
cide. 1  Whart.  Cr.  Law  (9th  ed.),  §  45,  p.  66,  note  1 ;  Browne's  Med. 
Jur.  of  Insan.  §  10,  note  1. 


346  PAESONS   V.    STATE.  [CHAP.  V. 

There  are  many  well  considered  cases  which  support  these  views.' 

The  law  of  Scotland  is  in  accord  with  the  English  law  on  this  subject, 
as  might  well  be  expected.  The  Criminal  Code  of  Germany,  however, 
contains  the  following  provision,  which  is  said  to  have  been  the  formu- 
lated result  of  a  very  able  discussion  both  by  the  physicians  and  lawyers 
of  that  country:  "There  is  no  criminal  act  when  the  actor  at  the 
time  of  the  otfence  is  in  a  state  of  unconsciousness,  or  morbid  disturb- 
ance of  the  mind,  throiir/h  which  the  free  determination  of  his  will  is 
excluded."  p:ncyc.  Brit.  (9th  ed.),  vol.  ix.  p.  112  ;  citing  Crim.  Code  of 
Germany  (§  51,  R.  G.  B.). 

The  Code  of  Fiance  provides  :  "  There  can  be  no  crime  or  offence  if 
the  accused  was  in  a  state  of  madness  at  the  time  of  the  act."  For 
some  time  tiie  French  tribunals  were  inclined  to  interpret  this  law  in 
such  a  manner  as  to  follow  in  substance  the  law  of  England.  But  that 
construction  has  been  abandoned,  and  the  modern  view  of  the  medical 
profession  is  now  adopted  in  that  country. 

It  is  no  satisfactory  objection  to  say  that  the  rule  above  announced 
by  us  is  of  difficult  application.  The  rule  in  McNaghten's  Case,  sujva, 
is  equally  obnoxious  to  a  like  criticism.  The  difficulty  does  not  lie  in 
the  rule,  but  is  inherent  in  the  subject  of  insanity  itself.  The  practical 
trouble  is  for  the  courts  to  determine  in  what  particular  cases  the  party 
on  trial  is  to  be  transferred  from  the  category  of  sane  to  that  of  insane 
criminals,  —  where,  in  other  words,  the  border  line  of  punishability  is 
adjudged  to  be  passed.  But,  as  has  been  said  in  reference  to  an  every- 
day fact  of  Nature,  no  one  can  say  where  twilight  ends  or  begins,  but 
there  is  ample  distinction  nevertheless  between  day  and  night.  We 
think  we  can  safely  rely  in  this  matter  upon  the  intelligence  of  our 
juries,  guided  by  the  testimony  of  men  who  have  practically  made  a 
study  of  the  disease  of  insanity,  and  enlightened  by  a  conscientious 
desire,  on  the  one  hand,  to  enforce  the  criminal  laws  of  the  land,  and 
on  the  other,  not  to  deal  harshly  with  any  unfortunate  victim  of  a 
diseased  mind,  acting  without  the  light  of  reason,  or  the  power  of 
volition. 

It  is  almost  needless  to  add  that  where  one  does  not  act  under  the 
duress  of  a  diseased  mind,  or  insane  delusion,  but  from  motives  of 
anger,  revenge,  or  other  passion,  he  cannot  claim  to  be  shielded  from 
punishment  for  crime  on  the  ground  of  msanity.  Insanity  proper  is 
more  or  less  a  mental  derangement,  coexisting  often,  it  is  true,  with  a 
disturbance  of  the  emotions,  affections,  and  other  moral  powers.  A 
mere  moral,  or  emotional  insanity,  so-called,  unconnected  with  disease 
of  the  mind,  or  irresistible  impulse  resulting  from  mere  moral  obliquity, 
or  wicked  propensities  and  habits,  is  not  recognized  as  a  defence  to 
crime  in  our  courts.  1  Whar.  Cr.  Law  (9th  ed.),  §  46  ;  Boswell  v.  State, 
63  Ala.  307,  35  Amer.  Rep.  20  ;  Ford  v.  State,  71  Ala.  385. 

The  charges  refused  by  the  court  raise  the  question  as  to  how  far 

^  The  consideration  of  certain  authorities  on  the  subject  is  omitted. 


SECT.  I.]  PARSONS   V.    STATE.  347 

one  acting  under  the  influence  of  an  insane  delusion  is  to  be  exempted 
from  criminal  accountability.  The  evidence  tended  to  show  that  one  of 
the  defendants,  Mrs.  Nancy  J.  Parsons,  acted  under  the  Inflaeiice  of 
an  insane  delusion  that  the  deceased,  whom  she  assisted  in  killing, 
possessed  supernatural  power  to  alllict  her  with  disease,  and  to  take 
her  life  by  some  '^  supernatural  trick;"  that  by  means  of  such  power 
the  deceased  had  caused  defendant  to  be  in  bad  health  for  a  long 
time,  and  that  she  acted  under  the  belief  that  she  was  in  great  danger 
of  the  loss  of  her  life  from  the  conduct  of  deceased  operating  by  means 
of  such  supernatural  power. 

The  rule  in  McNaghten's  Case,  as  decided  by  the  English  judges,  and 
supposed  to  have  been  adopted  by  the  court,  is  that  the  defence  of 
insane  delusion  can  be  allowed  to  prevail  m  a  criminal  case  only  when 
the  imaginary  state  of  facts  would,  if  real,  justify  or  excuse  the  act; 
or,  in  the  language  of  the  English  judges  themselves,  the  defendant 
"  must  be  considered  in  the  same  situation  as  to  responsibility,  as  if 
the  facts  with  respect  to  which  the  delusion  exists  were  real."  Bos  well's 
case,  63  Ala.  307.  It  is  apparent,  from  what  we  have  said,  that  this 
rule  cannot  be  correct  as  applied  to  all  cases  of  this  natui-e,  even  limiting 
it,  as  done  by  the  English  judges,  to  cases  where  one  "labors  under 
partial  delusion,  and  is  not  in  other  respects  insane."  McNaghten's 
Case,  10  CI.  &  F.  200  ;  s.  c.  2  Lawson's  Cr.  Def.  150.  It  holds  a  par- 
tially insane  person  as  responsible  as  if  he  were  entirely'  sane,  and  it 
ignores  the  possibility  of  crime  being  committed  under  the  duress  of  an 
insane  delusion,  operating  upon  a  human  mind,  the  integrity  of  which 
is  destroyed  or  impaired  by  disease,  except,  perhaps,  in  cases  where 
the  imaginary  state  of  facts,  if  real,  would  excuse  or  justify  the  act 
done  under  their  influence.  Fields'  Med.  Leg.  Guide,  101-104  ;  GuV 
&  F.  on  Forensic  Med.  220.  If  the  rule  declared  by  the  English  judge."? 
be  correct,  it  necessarily  follows  that  the  only  possible  instance  ol 
excusable  homicide  in  cases  of  delusional  insanity  would  be  where  the 
delusion,  if  real,  would  have  been  such  as  to  create,  in  the  mind  of  a 
reasonable  man,  a  just  apprehension  of  imminent  peril  to  life  or  limb. 
The  personal  fear,  or  timid  cowardice  of  the  insane  man,  although 
^  created  by  disease  acting  through  a  prostrated  nervous  organization, 
would  not  excuse  undue  precipitation  of  action  on  his  part.  Nothing 
would  justify  assailing  his  supposed  adversary  except  an  overt  act,  or 
demonstration  on  the  part  of  the  latter,  such  as,  if  tlie  imaginary  facts 
were  real,  would  under  like  circumstances  have  justified  a  man  perfectly 
sane  in  shooting  or  killing.  If  he  dare  fail  to  reason  on  the  supposed 
facts  embodied  in  the  delusion,  as  perfectly  as  a  sane  man  could  do  on  a 
like  state  of  realities,  he  receives  no  mercy  at  the  hands  of  the  law.  It 
exacts  of  him  the  last  pound  of  flesh.  It  would  follow  also,  under  this 
rule,  that  the  partially  insane  man,  afflicted  with  delusions,  would  no 
rnnre  be  excusable  than  a  sane  man  would  be.  if,  perchance,  it  was  by 
his  fault  the  diflflculty  was  provoked,  whether  by  word  or  deed  :  or,  if, 
in  fine,  he  may  have  been  so  negligent  as  not  to  have  declined  combatt 


348  PARSONS    V.    STATE.  [CHAP.  V. 

when  he  could  do  so  safely  without  increasing  his  peril  of  life  or  limb. 
If  this  has  been  the  law  heretofore,  it  is  time  it  should  be  so  no  longer. 
It  is  not  only  opposed  to  the  known  facts  of  modern  medical  science, 
but  it  is  a  hard  and  unjust  rule  to  be  applied  to  the  unfortunate  and 
providential  victims  of  disease.  It  seems  to  be  little  less  than  inhu- 
mane, and  its  strict  enforcement  would  probably  transfer  a  large  per- 
centage of  the  inmates  of  our  Insane  Hospital  from  that  institution  to 
hard  labor  in  the  mines  or  the  penitentiary.  Its  fallacy  consists  in  the 
assumption  that  no  other  phase  of  delusion  proceedhig  from  a  diseased 
brain  can  so  destroy  the  volition  of  an  insane  person  as  to  render  him 
powerless  to  do  what  he  knows  to  be  right,  or  to  avoid  doing  what 
he  raav  know  to  be  wrong.  This  inquiry,  as  we  have  said,  and  here 
repeat,  is  a  question  of  fact  for  the  determination  of  the  jury  in  each 
particular  case.  It  is  not  a  matter  of  law  to  be  decided  by  the  courts. 
We  think  it  suthcieut  if  the  insane  delusion  —  by  which  we  mean  the 
delusion  proceeding  from  a  diseased  mind — sincerelj'  exists  at  the  time 
of  committing  the  alleged  crime,  and  the  defendant  believing  it  to  be 
real,  is  so  influenced  b\-  it  as  either  to  render  him  incapable  of  perceiv- 
ing the  true  nature  and  quality  of  the  act  done,  by  reason  of  the  depra- 
vation of  the  reasoning  faculty,  or  so  subverts  his  will  as  to  destroy  his 
free  agency  by  rendering  him  powerless  to  resist  by  reason  of  the  duress 
of  the  disease.  In  such  a  case,  in  other  words,  there  must  exist  either 
one  of  two  conditions :  (1)  such  mental  defect  as  to  render  the  defend- 
ant unable  to  distinguish  between  right  and  wrong  in  relation  to  the 
particular  act ;  (2)  the  overmastering  of  defendant's  will  in  consequence 
of  the  insane  delusion  under  the  influence  of  which  he  acts,  produced 
b\-  disease  of  the  mind  or  brain.  Rex  v.  Hadfield,  37  How.  St.  Tr. 
1282  ;  s.  c,  2  Lawsou's  Cr.  Def  201  ;  Roberts  v.  State,  3  Ga.  310  ;  Com. 
V.  Rogers,  7  Met.  500;  State  v.  Windsor,  5  Harr.  512;  Buswell  on 
Insan.  §§  434,  440  ;  Amer.  Law  Review,  vol.  iv.  (1869-70)  pp.  236-252. 

In  conclusion  of  this  branch  of  the  subject,  that  we  may  not  be  mis- 
understood, we  think  it  follows  ver}-  clearl}'  from  what  we  have  said 
that  the  inquiries  to  be  submitted  to  the  jury,  then,  in  every  criminal 
trial  where  the  defence  of  insanity  is  interposed,  are  these  :  — 

1.  Was  the  defendant  at  the  time  of  the  commission  of  the  alleged 
crime,  as  matter  of  fact,  afflicted  with  a  disease  of  the  mi)id,  so  as  to  be 
either  idiotic,  or  otherwise  insane  ? 

2:  If  such  be  the  case,  did  he  know  right  from  wrong  as  applied  to 
the  particular  act  in  question?  If  he  did  not  have  such  knowledge,  he 
is  not  legally  responsible. 

3.  If  he  did  have  such  knowledge,  he  maj'  nevertheless  not  be  legally 
responsible  if  the  two  following  conditions  concur  : 

(1)  If,  by  reason  of  the  duress  of  such  mental  disease,  he  had  so  far 
lost  the  power  to  choose  between  the  right  and  wrong,  and  to  avoid  doing 
the  act  in  question,  as  that  his  free  agency  was  at  the  time  destroyed. 

(2)  And  if,  at  the  same  time,  the  alleged  crime  was  so  connected 
with  such  mental  disease,  in  the  relation  of  cause  and  effect,  as  to  have 
been  the  product  of  it  solely. 


SECT.   I.!  PARSONS   V.   STATE.  349 

Tlie  rule  announced  in  Boswell's  Case,  63  Ala.  308,  supra,  as  stated 
in  the  fourth  liead  note,  is  in  conflict  with  the  foregoing  conclusions, 
and  to  that  extent  is  declared  incorrect,  and  is  not  su[)i)orted  b}-  the 
opinion  in  that  case,  otherwise  than  by  dictum. 

We  adhere,  however,  to  the  rule  declared  by  this  court  in  Boswell's 
case,  supra,  and  followed  in  Ford's  Case,  71  Ala.  385,  holding  that 
when  insanity  is  set  up  as  a  defence  in  a  criminal  ease,  it  must  be 
established  to  the  satisfaction  of  the  jury  by  a  preponderance  of  the 
evidence  ;  and  a  reasonable  doubt  of  the  defendant's  sanity,  raised  by 
all  the  evidence,  does  not  authorize  an  acquittal. 

The  judgment  is  reversed,  and  the  cause  remanded.  In  the  mean- 
while the  prisoners  will  be  held  in  custody  until  discharged  by  due 
process  of  law. 

Stone,  C.  J.,  dissents  in  part. 

Note  on  the  Test  of  Insaxity.  The  test  of  insanity  laid  down  by  the  judges 
in  McNaghten's  Case,  supra  (usually  known  as  "the  knowledge  of  right  and  wrong 
test"),  prevails  in  many  jurisdictions,  and  "irresistible  impulse"  is  held  not  to  be 
such  insanity  as  will  excuse  from  crime.  U.  S.  v.  Shults,  6  McLean,  121  ;  U.  S.  v. 
Young,  25  F.  R.  710  ;  People  v.  Hoin,  62  Cal.  120 ;  U.  S.  v.  Guiteau,  10  F.  K.  161 
(D.  C.)  ;  Brinkley  v.  State,  oS  Ga.  296  ;  State  v.  Mowry,  37  Kas.  369,  15  Pac.  282; 
State  V.  Scott,  41  Minn.  365  (but  .see  State  v.  Shippey,  10  Minn.  223  ;  State  v.  Erb, 
74  Mo.  199  ;  Flanagan  v.  People,  52  N.  Y.  467  (supra)  ;  State  v.  Brandon,  8  Jones,  463  ; 
State  V.  Murray,  11  Or.  413,  5  Pac.  55  ;  Leache  v.  State,  22  Tex.  App.  279,  3  S.  W.  539 
(semblc).     See  Andersen  v.  State,  43  Conn.  514. 

Other  jurisdictions,  staiting  with  the  same  "right  and  wrong"  test,  hold  the  view 
that  the  test  is  satisfied  and  the  defendant  excused  if  he  acted  because  of  an  irresistible 
impulse,  and  not  as  a  free  agent.  Com.  v.  Rogers,  7  Met.  500  (supra)  ;  Bovard  v.  State, 
30  Miss.  600  ;  Brown  v.  Com.,  78  Pa.  122. 

Still  other  jurisdictions  discard  altogether  the  "right  and  wrong"  test,  and  hold 
that  irresistible  impulse  is  an  excuse,  though  the  knowledge  of  right  and  wrong  existed. 
State  V.  Windsor,  5  Harr.  512  ;  Dacey  v.  People,  116  111.  555  ;  Plake  v.  State,  121  Ind. 
433  ;  State  v.  Felter,  25  Iowa,  67  ;  Smith  v.  Com.,  1  Duv.  224  ;  Blackburn  v.  State,  23 
Ohio  St.  146 ;  Dejamette  v.  Com.,  75  Va.  867. 

The  doctrine  of  the  Alabama  and  New  Hampshire  courts,  that  there  is  no  legal 
test  of  insanity,  is  stated  in  the  case  of  Parsons  v.  State,  81  Ala.  577  (supra),  follow, 
iug  the  opinion  of  Doe,  J.,  in  State  v.  Pike,  49  N.  H.  399.  See  also  People  v.  Finley, 
38  Mich.  482. 


350  REGTNA  V.    DOODY.  [CHAP.  V. 

SECTION   IL 

Intoxication. 

PEARSON'S   CASE. 

Carlisle  Assizes.     1835. 
[Reported  2  Lewin,  144.] 

The  prisoner  was  indicted  for  the  murder  of  his  wife. 

It  was  proved  that  in  a  fit  of  drunkenness  he  had  beaten  her  in  a  cruel 
manner  with  a  rake-shank,  and  that  she  died  of  the  wounds  and  bruises 
vhich  she  received.     His  only  defence  was  that  he  was  drunk. 

Pakk,  J.     Vohintary  drunkenness  is  no  excuse  for  crime. 

If  a  party  ))e  made  drunk  by  stratagem  or  the  fraud  of  anotlier  he 
is  not  responsible. 

So  drunkenness  may  be  taken  into  consideration  to  explain  the 
probability  of  a  party's  intention  in  the  case  of  violence  committed 
on  sudden  provocation. 


REGINA   V.    DOODY. 
Stafford  Assizes.     1854. 

\Reporied  6  Cox  C.  C.  463.] 

The  prisoner  was  indicted  for  unlawfully  attempting  to  commit 
suicide  at  Wolverhampton,  on  the  5th  of  March,  1854. 

It  appeared  that  the  prisoner  was  at  the  George  Inn.  Wolverhamp- 
ton, on  the  night  of  the  5th  March,  and  about  ten  o'clock  went  to  the 
water-closet.  He  was  soon  afterwards  found  there,  suspended  to  a 
beam  by  a  scarf  tied  round  his  neck.  He  was  cut  down,  and  anima- 
tion restored.  On  being  taken  into  custody  and  charged  with  the 
offence,  he  stated  that  he  had  led  a  bad  course  of  life,  and  had  no 
money  or  friends.  He  now  said  in  his  defence  that  he  had  been 
drinking  for  nine  days  before,  and  did  not  know  what  he  was  doing. 
There  was  some  evidence  to  show  that,  although  he  was  partially 
intoxicated,  he  was  quite  capable  of  taking  care  of  himself. 

WiGHTMAN,  J.,  told  the  jury  that  the  offence  charged  constituted, 
beyond  all  doubt,  a  misdemeanor  at  common  law.  The  question  for 
them  to  consider  was  whether  the  prisoner  had  a  mind  capable  of  con- 
templating the  act  charged,  and  whether  he  did,  in  fact,  intend  to  take 
away  his  life.  The  prisoner  alleged  in  his  defence  that  he  was  drunk 
at  the  time,  which  must  be  taken  to  mean  that  he  had  no  deliberate 


SECT,  n.]  KEGINA  V.   DAVIS.  351 

intention  to  destroy  his  life  ;  for  the  mere  fact  of  drunkenness  in  this, 
as  in  other  cases,  is  not  of  itself  an  excuse  for  the  crime,  but  it  is  a 
material  fact  in  order  to  arrive  at  the  conclusion  whether  or  no  the 
prisoner  really  intended  to  destroy  his  life. 

Verdict,  Guilty.     Sentence,  three  months'  imprisonment. 


REGINA  V.    GAMLEN. 
Bristol  Assizes.     1858. 

[Rrported  1  Fostci-  and  Finlasoii,  90.] 

Assault.  The  charge  arose  out  of  an  affray  at  a  fair,  and  there 
seemed  some  ground  for  supposing  that  the  prisoner  acted  under 
apprehension  of  an  assault  upon  himself.     All  concerned  were  drunk. 

Ckowder,  J.  Drunkenness  is  no  excuse  for  crime  ;  but  in  consid- 
ering whether  the  prisoner  apprehended  an  assault  on  himself,  you 
may  take  into  account  the  state  in  which  he  was.         Not  guilty.^ 


REGINA   V.   DAVIS. 
Newcastle  Assizes.     1881. 

[Reported  U  Cox  C.  C.  563.] 

William  Davis,  thirty-eight,  laborer,  was  charged  with  feloniously 
wounding  his  sister-in-law,  Jane  Davis,  at  Newcastle,  on  the  14th  day 
of  January,  with  intent  to  murder  her. 

On  the  14th  day  of  January,  1881,  the  prisoner  (who  had  been  pre- 
viously drinking  heavily,  but  was  then  sober)  made  an  attack  upon 
his  sister-in-law,  Mrs.  Davis,  threw  her  down,  and  attempted  to  cut 
her  throat  with  a  knife.  Ordinarily  he  was  a  very  mild,  quiet,  peace- 
able,  well-behaved  man,  and  on  friendly  terms  with  her.  At  the  police 
station  he  said  :  "  The  man  in  the  moon  told  me  to  do  it.  I  will  have 
to  commit  murder,  as  I  must  be  hanged."  He  was  examined  by  two 
medical  men,  who  found  him  suffering  from  delirium  tremens,  result- 
ing from  over-indulgence  in  drink.  According  to  their  evidence  he 
would  know  what  he  was  doing,  but  his  actions  would  not  be  under 
his  control.  In  their  judgment  neither  fear  of  punishment  nor  legal 
nor  moral  considerations  would  have  deterred  him  ;  nothing  short  of 
actual  physical  restraint  would  have  prevented  him  acting  as  he  did. 
He  was  disordered  in  his  senses,  and  would  not  be  able  to  distinguish 

1  Ace.  Maisliall's  Case,  1  Lewin  C.  C.  76.  But  see  Com.  v.  Hawkins,  3  Gray, 
463.  —  Ed 


352  EEGINA    V.    DAVIS.  [CHAP.  V. 

between  moral  right  and  wrong  at  the  time  he  committed  the  act. 
Under  proper  care  and  treatment  he  recovered  in  a  week,  and  was 
then  perfectly  sensible. 

For  the  defence  it  was  submitted  that  he  was  of  unsound  mind  at 
the  time  of  the  commission  of  the  act,  and  was  not  responsible  for  his 
actions. 

Stephen,  J.,  to  the  jury.  The  prisoner  at  the  bar  is  charged  with 
having  feloniously  wounded  his  sister-in-law,  Jane  Davis,  on  the  14th 
day  of  January  last,  with  intent  to  murder  her.  You  will  have  to 
consider  whether  he  was  in  such  a  state  of  mind  as  to  be  thoroughly 
responsible  for  his  actions  ;  and  with  regard  to  that  I  must  explain  to 
you  what  is  the  kind  or  degree  of  insanity  which  relieves  a  man  from 
responsibility.  Nobody  must  suppose  —  and  I  hope  no  one  will  be  led 
for  one  moment  to  suppose  —  that  drunkenness  is  any  kind  of  excuse 
for  crime.  If  this  man  had  been  raging  drunk  and  had  stabbed  his 
sister-in-law  and  killed  her,  he  would  have  stood  at  the  bar  guilty  of 
murder  beyond  all  doubt  or  question.  But  drunkenness  is  one  thing, 
and  the  diseases  to  which  drunkenness  leads  are  different  things  ;  and 
if  a  man  by  drunkenness  brings  on  a  state  of  disease  which  causes 
such  a  degree  of  madness,  even  for  a  time,  which  would  have  relieved 
him  from  responsibility  if  it  had  been  caused  in  any  other  way,  then 
he  would  not  be  criminally  responsible.  In  my  opinion,  in  such  a  case 
the  man  is  a  madman,  and  is  to  be  treated  as  such,  although  his  mad- 
ness is  only  temporary.  If  you  think  he  was  so  insane  that  if  his 
insanity  had  been  produced  by  other  causes  he  would  not  be  respon- 
sible for  his  actions,  then  the  mere  fact  that  it  was  caused  by  drunk- 
enness will  not  prevent  it  having  the  effect  which  otherwise  it  would 
have  had,  of  excusing  him  from  punishment.  Drunkenness  is  no  ex- 
cuse, but  delirium  tremens  caused  by  drunkenness  may  be  an  excuse 
if  you  think  it  produces  such  a  state  of  mind  as  would  otherwise 
relieve  him  from  responsibility.  A  person  may  be  both  insane  and 
responsible  for  his  actions,  and  the  great  test  laid  down  in  McNagh- 
ten's  Case  (10  CI.  &  Fin.  200  ;  1  C.  &  K.  130  n.)  was  whether  he  did 
or  did  not  know  at  the  time  that  the  act  he  was  committing  was  wrong. 
If  he  did  —  even  though  he  were  mad  —  he  must  be  responsible  ;  but  if 
his  madness  prevented  that,  then  he  was  to  be  excused.  As  I  under- 
stand the  law,  any  disease  which  so  disturbs  the  mind  that  you  cannot 
think  calmly  and  rationally  of  all  the  different  reasons  to  which  we 
refer  in  considering  the  rightness  or  wrongness  of  an  action,  —  any 
disease  which  so  disturbs  the  mind  that  you  cannot  perform  that  duty 
with  some  moderate  degree  of  calmness  and  reason,  may  be  fairly  said 
to  prevent  a  man  from  knowing  that  what  he  did  was  wrong.  Deli- 
rium  tremens  is  not  the  primary  but  the  secondary  consequence  of 
drinking,  and  both  the  doctors  agree  that  the  prisoner  was  unable  to 
control  his  conduct,  and  that  nothing  short  of  actual  physical  restraint 
would  have  deterred  him  from  the  commission  of  the  act.  If  you 
think  there  was  a  distinct  disease  caused  by  drinking,  but  different 


SECT.  II.]  TEOPLE  V.    KOGEUS.  353 

from  drunkenness,  and  that  by  reason  thereof  he  did  not  know  that  the 
act  was  wrong,  you  will  find  a  verdict  of  not  guilty  on  the  ground  of 
insanity  ;  but  if  you  are  not  satisfied  with  that,  you  must  find  him 
guilty  either  of  stabbing  with  intent  to  murder  or  to  do  grievous  bodily 
harm. 

The  jury  returned  a  verdict  of  not  guilty  on  the  ground  of  insanity. 

The  prisoner  was  ordered  to  be  detained  during  Her  Majesty's 
pleasure.* 


PEOPLE  V.   ROGERS. 
Court  of  Appeals  of  New  York.     1858. 

[Reported  18  New  York,  9.] 

Denio,  J.^  The  principal  exception  to  the  judge's  charge  which  is 
now  relied  on,  relates  to  the  consideration  which  should  be  given  to 
the  proof  that  the  prisoner  was  intoxicated  at  the  time  of  the  homi- 
cide. The  commission  of  crime  is  so  often  the  attendant  upon  and 
the  consequence  of  drunkenness,  that  we  should  naturally  expect  the 
law  concerning  it  to  be  well  defined.  Accordingly  we  find  it  laid  down 
as  early  as  the  reign  of  Edward  VI.  (1548),  that  "  if  a  person  that  is 
drunk  kills  another,  this  shall  be  felony,  and  he  shall  be  hanged  for  it. 
And  yet  he  did  it  through  ignorance,  for  when  he  was  drunk  he  had 
no  understanding  nor  memory  ;  but  inasmuch  as  that  ignorance  was 
occasioned  by  his  own  act  and  folly,  and  he  might  have  avoided  it, 
he  shall  not  be  privileged  thereby."  Plowden,  19.  The  same  doc- 
trine is  laid  down  by  Coke  in  the  Institutes,  where  he  calls  a  drunk- 
ard voluntarius  doBmon,  and  declares  that  "whatever  hurt  or  ill  he 
doeth,  his  drunkenness  doth  aggravate  it."  3  Thomas's  Coke,  46. 
So  in  his  Reports  it  is  stated  that  "although  he  who  is  drunk  is  for 
the  time  noii  compos  mentis,  yet  his  drunkenness  does  not  extenuate 
his  act  or  offence,  nor  turn  to  his  avail ;  but  it  is  a  great  offence  in 
itself,  and  therefore  aggravates  his  offence,  and  doth  not  derogate 
from  the  act  which  he  did  during  that  time,  —  and  that  as  well  in  cases 
touching  his  life,  his  lands,  his  goods,  or  any  other  thing  that  concerns 
him."  Beverley's  Case,  4  Co.  125,  a.  Lord  Bacon,  in  his  "  Maxims 
of  the  Law,"  dedicated  to  Queen  Elizabeth,  asserts  the  doctrine  thus : 
"  If  a  madman  commit  a  felony,  he  shall  not  lose  his  life  for  it,  be- 
cause his  infirmity  came  by  the  act  of  God ;  but  if  a  drunken  man 
commit  a  felony,  he  shall  not  be  excused,  because  the  imperfection 
came  by  his  own  default."  Rule  V.  And  that  great  and  humane 
Judge,    Sir   Matthew   Hale,    in    his    "  History   of    the   Pleas    of  the 

1  Ace.  U.  S.  V.  McGlue,  1  Curt.  1;  Beasley  v.  State,  50  Ala.  149;  Fisher  v   State,  64 
Ind.  435;  Maconneheyu.  State,  5  Ohio  St.  77;  State  v.  Robinson,  20  W.  Va.  713.  —  Ed 
*  Parts  only  of  the  opinions  are  given. 


354  PEOPLE  V.  ro(;eks.  [chap.  v. 

Crown,"  written  nearly  two  hundred  years  ago,  does  not  countenance 
any  relaxation  of  the  rule.  "The  third  kind  of  dementia  "  he  says, 
"is  that  which  is  dementia  ajfectata,  namely,  drunkenness.  This 
vice  doth  deprive  men  of  the  use  of  reason,  and  puts  many  men  into 
a  perfect  but  temporary  frenzy,  and  therefore,  according  to  some 
civilians,  such  a  person  conjmittiug  homicide  shall  not  be  punished 
simply  for  the  criuie  of  homicide,  but  shall  suffer  for  his  drunkenness, 
answerable  to  the  nature  of  the  crime  occasioned  thereby,  so  that  yet 
the  primal  cause  of  the  punishment  is  rather  the  drunkenness  than  the 
crime  committed  in  it ;  but  by  the  laios  of  England  such  a  person 
shall  have  no  privilege  by  his  voluntarily  contracted  madness,  but 
shall  have  the  same  judgment  as  if  he  were  in  his  right  senses."  He 
states  two  exceptions  to  the  rule  :  one  where  the  intoxication  is  without 
fault  on  his  part,  as  where  it  is  caused  by  drugs  administered  by  an 
unskilful  physician  ;  and  the  other,  where  indulgence  in  habits  of  in- 
temperance has  produced  permanent  mental  disease,  which  he  calls 
fixed  frenzy.  1  Hale,  32.  Coming  down  to  more  modern  times,  we 
find  the  principle  insisted  upon  by  the  enlightened  Sir  William  Black- 
stone.  "The  law  of  England,"  he  says,  "considering  how  eas}'  it  is 
to  contract  this  excuse,  and  how  weak  an  excuse  it  is  (though  real), 
will  not  suffer  any  man  thus  to  privilege  one  crime  by  another." 
4  Com.  26.  A  few  recent  cases  in  the  English  courts  will  show  the 
consistency  with  which  the  rule  has  been  followed  down  to  our  own 
times.  In  Burrow's  Case  (Lewin's  Cr.  C.  75,  a.  d.  1823)  the  pris- 
oner was  indicted  for  a  rape,  and  urged  that  he  was  in  liquor.  Hol- 
royd,  J.,  addressed  the  jury  as  follows:  "  It  is  a  maxim  in  law  that 
if  a  man  gets  himself  intoxicated,  he  is  answerable  to  the  consequences, 
and  is  not  excusable  on  account  of  an}-  crime  he  may  commit  when 
infuriated  by  liquor,  provided  he  was  previousl}'  in  a  fit  state  of 
reason  to  know  right  from  wrong.  If,  indeed,  the  infuriated  state  at 
which  he  arrives  should  continue  and  become  a  lasting  malady,  then 
he  is  not  answerable."  A  similar  charge  was  given  to  the  jury  in  the 
next  case  in  the  same  book,  where  drunkenness  was  urged  upon  the 
trial  of  an  indictment  for  burglary.  Patrick  Carroll  was  tried  in  1835, 
at  the  Central  Criminal  Court,  before  a  judge  of  the  King's  Bench  and 
a  judge  of  the  Common  Pleas,  for  the  murder  of  Elizabeth  Browning. 
It  appeared  that  shortly  before  the  homicide  the  prisoner  was  very 
drunk.  His  counsel,  though  he  admitted  that  drunkenness  could 
not  excuse  from  the  commission  of  crime,  yet  submitted  that  in  a 
charge  for  murder,  the  material  question  being  whether  the  act 
was  premeditated  or  done  only  with  sudden  heat  and  impulse,  the 
fact  of  the  party  being  intoxicated  was  a  proper  circumstance  to  be 
taken  into  consideration,  and  he  referred  to  a  case  before  Holroyd, 
J.,  reported  in  2  Russell  on  Crimes  8,  Rex  v.  Grindley,  where  that 
doctrine  was  laid  down.  Parke,  J.,  in  summing  up,  said  :  "  Highly 
as  I  respect  that  late  excellent  judge,  I  differ  with  him,  and  my  brother 
Littlodale  [the  associate]  agrees  with  me.     He   once   acted   on   that 


SECT.  II.}  PEOPLE   V.    ROGERS.  355 

case,  but  afterwards  retracted  his  opinion,  and  there  is  no  doubt  that 
that  case  is  not  law.  I  think  that  there  would  be  no  safety  lor  human 
life  if  it  were  considered  as  law."  The  prisoner  was  convicted  and 
executed.  7  Carr.  &  Payne,  145.  It  would  be  easy  to  multiply 
citations  of  modern  cases  upon  this  doctrine  ;  but  it  is  unnecessary, 
as  they  all  agree  upon  the  main  proposition,  namely,  that  mental 
alienation,  produced  b}'  drinking  intoxicating  liquors,  furnishes  no  im- 
munity for  crime.  Rex  v.  Meakin,  7  Carr.  &  Payne,  297,  and  Rex 
V.  Tliomas,  7  id.  817,  may  be  mentioned;  and  in  this  country,  The 
United  States  v.  Drew,  5  Mason  C.  C.  R.  28,  and  The  United  States 
V.  McGlue,  1  Curtis  C.  C  R.  1,  will  be  found  to  maintain  the  principle 
upon  the  authority  of  Judge  Story  and  Judge  Curtis,  of  the  Supreme 
Court  of  the  United  States.  These  last  two  cases  are  interesting,  not 
only  for  stating  tlie  general  principle,  but  for  confirming  the  distinction 
laid  down  so  long  ago  b}'  Sir  Matthew  Hale,  that  where  mental 
disease,  or  as  he  terms  it  a  "fixed  frenzy,"  is  shown  to  be  the  result 
of  drunkenness,  it  is  entitled  to  the  same  consideration  as  insanity 
arising  from  any  other  cause.  The  flrst  of  them  was  a  case  of  delirium 
treynens,  and  Judge  Story  directed  an  acquittal  on  that  account.  In 
the  other  the  evidence  left  it  doubtful  whether  the  furious  madness 
exhibited  by  the  prisoner  was  the  result  of  present  intoxication,  or  of 
delirium  supervening  upon  long  habits  of  indulgence.  This  state  of 
the  evidence  led  Judge  Curtis  to  state  the  rule  and  the  exception  with 
great  force  and  clearness.  In  this  state  the  cases  of  The  People  v. 
Hammell  and  The  People  v.  Robinson,  reported  in  the  second  volume 
of  Judge  Parker's  Reports  (pp.  223,  235),  show  the  consistency  with 
which  the  doctrine  has  been  adhered  to  in  our  criminal  courts  and  in 
the  Supreme  Court.  The  opinion  in  the  last  case  contains  a  reference 
to  several  authorities  to  tlie  same  effect  in  the  other  states  of  the 
Union.  Where  a  principle  in  law  is  found  to  be  well  established  by  a 
series  of  authentic  precedents,  and  especially  where,  as  in  this  case, 
there  is  no  conflict  of  authority,  it  is  unnecessary  for  the  judges  to 
vindicate  its  wisdom  or  policy.  It  will,  moreover,  occur  to  every 
mind  that  such  a  principle  is  absolutely  essential  to  the  protection  of 
life  and  property.  In  the  forum  of  conscience  there  is  no  doubt  con- 
siderable difference  between  a  murder  deliberately  planned  and  exe- 
cuted by  a  person  of  unclouded  intellect,  and  the  reckless  taking  of 
life  by  one  infuriated  by  intoxication  ;  but  human  laws  are  based  upon 
considerations  of  policy,  and  look  rather  to  the  maintenance  of  per- 
sonal security  and  social  order  than  to  an  accurate  discrimination  as 
to  the  moral  qualities  of  individual  conduct.  But  there  is,  in  truth, 
no  injustice  in  holding  a  person  responsible  for  his  acts  committed  in 
a  state  of  voluntary  intoxication.  It  is  a  duty  which  every  one  owes 
to  his  fellow-men  and  to  society,  to  say  nothing  of  more  solemn  obli- 
gations, to  preserve,  so  far  as  it  lies  in  his  own  power,  the  inestimable 
gift  of  reason.  If  it  is  perverted  or  destroyed  by  fixed  disease,  though 
brought  on  by  his  own  vices,  the  law  holds  him  not  accountable.     But 


356  PEOPLE    V.    ROGEKS.  [CHAP.  V. 

if  by  a  voluntary  act  he  temporarily  casts  off  the  restraints  of  reason 
and  conscience,  no  wrong  is  done  hitn  if  he  is  considered  answerable 
for  any  injury  which  in  that  state  he  may  do  to  others  or  to  society. 

Before  proceeding  to  examine  the  judge's  charge,  it  is  necessary  to 
state  one  other  principle  connected  with  the  subject  of  intoxication. 
I  am  of  the  opinion  that,  in  cases  of  homicide,  tlie  fact  that  the  ac- 
cused was  under  the  influence  of  liquor  may  be  given  in  evidence  in 
his  behalf.  The  effect  which  the  evidence  ought  to  have  upon  the 
verdict  will  depend  upon  the  other  circumstances  of  the  case.  Thus, 
in  Rex  i\  Carroll,  which  was  a  case  of  murder  by  stabbing,  there  was 
not,  as  the  court  considered,  any  provocation  on  the  part  of  the  de- 
ceased, and  it  was  held  that  the  circumstance  that  the  prisoner  was 
intoxicated  was  not  at  all  material  to  be  considered.  Rex  v.  Meakin 
was  an  indictment  for  stabbing  with  a  fork,  with  intent  to  murder, 
and  it  was  shown  that  the  prisoner  was  the  worse  for  liquor.  Alder- 
son,  Baron,  instructed  the  jury  that,  with  regard  to  the  intention, 
drunkenness  might  be  adverted  to  according  to  the  nature  of  the  in- 
strument used.  "If,"  he  said,  "a  man  uses  a  stick,  you  would  not 
infer  a  malicious  intent  so  strongly  against  him,  if  drunk  when  he 
made  an  intemperate  use  of  it,  as  you  would  if  he  had  used  a  different 
kind  of  weapon  ;  but  where  a  dangerous  instrument  is  used,  which,  if 
used,  must  produce  grievous  bodily  harm,  drunkenness  can  have  no 
effect  upon  the  consideration  of  the  malicious  intent  of  the  party." 
In  Rex  V.  Thomas  (for  maliciously  stabbing),  the  person  stabbed  had 
struck  the  prisoner  twice  with  his  fist,  when  the  latter,  being  drunk, 
stabbed  him,  and  the  jury  were  charged  that  drunkenness  miglit  be 
taken  into  consideration  in  cases  wdiere  what  the  law  deems  sufficient 
provocation  has  been  given,  because  the  question  in  such  cases  is, 
whether  the  fatal  act  is  to  be  attributed  to  the  passion  of  anger  excited 
by  the  previous  provocation  ;  and  that  passion,  it  was  said,  is  more 
easily  excitable  in  a  person  when  in  a  state  of  intoxication  than  when 
he  is  sober.  So,  it  was  added,  where  the  question  is  whether  words 
have  been  uttered  with  a  deliberate  purpose,  or  are  merely  low  and 
idle  expressions,  the  drunkenness  of  the  person  uttering  them  is  proper 
to  be  considered.  But  if  there  is  really  a  previous  determination  to 
resent  a  slight  affront  in  a  barbarous  manner,  the  state  of  drunkenness 
in  which  the  prisoner  was,  ought  not  to  be  regarded,  for  it  would  fur- 
nish no  excuse. 

It  must  generally  happen,  in  homicides  committed  by  drunken  men, 
that  the  condition  of  the  prisoner  would  explain  or  give  character  to 
some  of  his  language,  or  some  part  of  his  conduct ;  and  tlierefore  I 
am  of  opinion  that  it  would  never  be  correct  to  exclude  the.  proof 
altogether.  That  it  would  sometimes  be  right  to  advise  the  jury  that 
it  ought  to  have  no  influence  upon  the  case,  is,  I  think,  clear  from 
the  foregoing  authorities.  In  a  case  of  lengthened  premeditation,  of 
Iving  in  wait,  or  where  the  death  was  by  poisoning,  or  in  the  case  of 
wanton  killing  without  any  provocation,  such  an  instruction  would 
plainly  be  proper. 


SECT.  IT.]  PEOrLE  V.    ROGERS.  357 

Harris,  J.  No  rule  is  more  familiar  than  that  intoxication  is  never 
an  excuse  for  crime.  There  is  no  judge  Mho  has  been  engaged  in  the 
administration  of  criminal  law,  who  has  not  hatl  occasion  to  assert  it. 
Even  where  intent  is  a  necessary  ingredient  in  the  crime  charged,  so 
long  as  the  offender  is  capable  of  conceiving  a  design,  he  will  be  pre- 
sumed, in  the  absence  of  proof  to  the  contrary,  to  have  intended  the 
natural  consequences  of  his  own  act.  Thus,  if  a  man,  without  provo- 
cation, shoot  another  or  cleave  him  down  with  an  axe,  no  degree  of 
intoxication,  short  of  that  wliich  shows  that  he  was  at  the  time  utterlv 
incapable  of  acting  from  motive,  will  shield  him  from  conviction.  This 
was,  in  substance,  the  doctrine  which  the  jury  received  from  the  court 
in  this  case.  The  defendant  had  struck  a  blow  with  a  deadly  weapon, 
which  had  resulted  in  immediate  death.  To  this  act  the  law,  without 
further  proof,  imputed  guilty  design.  If  the  perpetrator  would  escape 
the  consequences  of  an  act  thus  committed,  it  was  incumbent  on  him 
to  show,  either  that  he  was  incapable  of  entertaining  such  a  purpose, 
or  that  the  act  was  committed  under  provocation.  In  respect  to  the 
latter,  there  was  nothing  said  by  the  court,  nor  any  request  to  charge. 
Had  it  been  contended  that  the  blow  was  struck  in  the  heat  of  passion, 
it  might  then  have  been  proper  to  instruct  the  jury  that,  in  determin- 
ing this  question,  the  intoxication  of  the  defendant  might  well  be  con- 
sidered. No  such  ground  appears  to  have  been  taken  by  the  counsel 
for  the  defence.  There  was,  indeed,  some  testimon)'  tending  to  show 
that  the  defendant  had  been  struck  before  he  committed  the  act  for 
which  he  was  tried.  But  the  weight  of  the  testimony  is  clearly  against 
this  theory  of  the  case.  It  was  no  doubt  judicious,  therefore,  for  the 
defendant's  counsel  to  refrain  from  asking  the  court  to  charge  that 
the  intoxication  of  the  defendant  might  be  considered  b}-  the  jury  in 
determining  whether  the  blow  was  struck  in  the  heat  of  passion,  or 
with  premeditated  design.  Had  such  a  request  been  made,  I  think  it 
would  have  been  the  duty  of  the  court  so  to  charge  ;  though  from  the 
state  of  the  testimony,  it  is  not  likely  that  the  result  would  have  been 
favorable  to  the  defendant. 

In  the  case  now  before  us,  there  was  no  attempt  to  show  that  the 
act  of  killing  was  committed  under  the  impulse  of  sudden  passion.  AU 
that  the  court  w^as  I'equested  to  do  was  to  instruct  the  jury  that  if  they 
were  satisfied  that,  by  reason  of  intoxication,  there  was  no  intention  op 
motive  to  commit  the  crime  of  murder,  thev  should  convict  the  defend- 
ant of  manslaughter  onl}'.  In  refusing  so  to  charge,  there  was  no 
error.  If,  by  this  request,  the  counsel  for  the  defendant  meant,  as 
the  request  seems  to  have  been  interpreted  b}-  the  Supreme  Court,  that 
the  jury  should  be  instructed  to  take  into  consideration  the  intoxica. 
tion  of  the  defendant  in  determining  the  intent  with  which  the  homi- 
cide was  committed,  the  proposition  is  not  law.  It  has  never  yet  been 
held  that  the  crime  of  murder  can  be  reduced  to  manslaughter  by 
showing  that  the  perpetrator  was  drunk,  when  the  same  offence,  if 
committed  by  a  sober  man,  would  be  murder.     If,  on  the  other  hand. 


358  CHOICE    V.    STATE.  [CHAP.  V, 

it  was  intended  that  the  court  should  instruct  the  jury  that  if,  b}'  reason 
uf  intoxication,  the  defendant  was  so  far  deprived  of  his  senses  as  to 
be  incapable  of  entertaining"  a  purpose,  or  acting  from  design,  the  jury 
were  so  instructed.  This  was  enough,  unless  the  counsel  for  the  de- 
fendant desired  to  have  the  jurj'  decide  whether  the  act  was  not  com- 
mitted in  the  heat  of  passion.  In  that  case,  his  proposition  must  have 
been  verj'  differently  framed. 

Judgment  of  the  Supreme  Court  reversed,  and  that  of  the  General 
Sessions  affirmed. 


CHOICE  V.    STATE. 
Supreme  Court  of  Georgia.     1860. 

[Reported  31   Georgia,  424.] 

Lumpkin,  J.^  The  sixth  error  alleged  in  the  motion  for  a  new  trial 
is,  because  the  judge  failed  to  include  in  his  charge  to  the  jury  the 
law  on  the  material  facts  proven  in  the  evidence  and  insisted  on  in 
the  argument  of  counsel ;  and  especially  in  failing  to  charge  the  jury 
whether  the  prisoner  was  or  was  not  responsible  for  crime,  if  by  rea- 
son of  the  injury  to  his'  brain  or  otherwise  (mark  that  expression  !)he 
was  afflicted  with  the  disease  called  oinoviania^  and  by  reason  of  this 
disease  was  irresistibly  impelled,  by  a  will  not  his  own,  to  drink,  and 
after  being  so  impelled  did  drink,  and  thus  became  insane  from 
drink,  and  while  thus  insane  he  committed  homicide.  The  court  also 
erred  in  not  charging  the  jury  that  if  they  believed  the  prisolber  had 
suffered  by  injury,  or  otherwise  (mark  that  again  !),  a  pathological  or 
organic  change  in  the  brain,  which  produced  the  disease  of  oinomania, 
and  by  this  disease  was  irresistibly  impelled  to  drink  liquor,  and  from 
the  liquor  thus  drank  became  insane,  and  while  thus  insane  killed 
deceased,  he  was  not  guilty  of  murder. 

Whether  any  one  is  born  with  an  irresistible  desire  to  drink,  or 
■whether  such  thirst  may  be  the  result  of  accidental  injury  done  to  the 
brain,  is  a  theory  not  yet  satisfactorily  established.  For  myself,  I 
capitally  doubt  whether  it  ever  can  be.  And  if  it  were,  how  far  this 
crazy  desire  for  liquor  would  excuse  from  crime,  it  is  not  for  me  to 
say.  That  this  controlling  thirst  for  liquor  may  be  acquired  by  the 
force  of  habit,  until  it  becomes  a  sort  of  second  nature,  in  common 
language,  I  entertain  no  doubt.  Whether  even  a  long  course  of  in- 
dulgence will  produce  a  pathological  or  organic  change  in  the  brain,  I 
venture  no  opinion.  Upon  this  proposition,  however,  I  plant  myself 
immovably,  and  from  it  nothing  can  dislodge  me  but  an  Act  of  the 
Legislature  ;  namely,  that  neither  moral  nor  legal  responsibility  can  be 
avoided  in  this  way.     This  is  a  new  principle  sought  to  be  ingrafted 

^  Part  of  the  oiiinion  only  is  given. 


SECT,  n.]  STATE   V.   JOHNSON.  359 

upon  criminal  jurisprudence.  It  is  neither  more  nor  less  than  tliis, 
—  that  a  want  of  will  and  conscience  to  do  right  will  constitute  an 
excuse  for  the  commission  of  crime  ;  and  that,  too,  where  this  deficiency 
in  will  and  conscience  is  the  result  of  a  long  and  persevering  course  of 
wrong-doing.  If  this  doctrine  be  true,  —  I  speak  it  with  all  serious- 
ness, —  the  devil  is  the  most  irresponsible  being  in  the  universe.  For, 
from  his  inveterate  hostility  to  the  Author  of  all  good,  no  other  crea- 
ture has  less  power  than  Satan  to  do  right.  The  burglar  and  the 
pirate  may  indulge  in  robbing  and  murder  until  it  is  as  hard  for  an 
Ethiopian  to  change  his  skin  as  for  them  to  cease  to  do  evil,  but  the 
inability  of  Satan  to  control  his  will,  to  do  right,  is  far  beyond  theirs  ; 
and  yet  our  faith  assures  us  that  the  fate  of  Satan  is  unalteral)ly  and 
eternally  fixed  in  the  prison-house  of  God's  enemies.  The  fact  is, 
responsibility  depends  upon  the  possession  of  will,  —  not  the  power 
over  it.  Nor  does  the  most  desperate  drunkard  lose  the  power  to 
control  his  will,  but  he  loses  the  desire  to  control  it.  No  matter  how- 
deep  his  degradation,  the  drunkard  uses  his  will  when  he  takes  his 
cup.  It  is  for  the  pleasure  of  the  relief  of  the  draught,  that  he  takes 
it.  His  intellect,  his  appetite,  and  his  will,  all  work  rationally,  if  not 
wisely,  in  his  guilty  indulgence.  And  were  you  to  exonerate  the  ine- 
briate from  responsibility,  you  would  do  violence  both  to  his  conscious- 
ness and  to  his  conscience  ;  for  he  not  only  feels  the  self-prompted 
use  of  every  rational  power  involved  in  accountability,  but  he  feels 
also  precisely  what  this  new  philosophy  denies,  —  his  solemn  and 
actual  wrong-doing,  in  the  very  act  of  indulgence.  Converse  seriously 
with  the  greatest  drunkard  this  side  of  actual  insanity,  —  just  compose 
him,  so  as  to  reach  his  clear,  constant  experience,  —  and  he  will  confess 
that  he  realizes  the  guilt,  and  therefore  the  responsibility  of  his  con- 
duct. A  creature  made  responsible  by  God  never  loses  his  respon- 
sibility save  by  some  sort  of  insanity.  There  have  always  existed 
amongst  men  a  variety  of  cases  wherein  the  will  of  the  transgressor 
is  universally  admitted  to  have  little  or  no  power  to  dictate  a  return  to 
virtue.  But  mankind  have  never,  in  any  age  of  the  world,  exonerated 
the  party  from  responsibility,  except  where  they  were  considered  to 
have  lost  rectitude  of  intellect  by  direct  mental  alienation.^ 


STATE  V.   JOHNSON. 
ScpsEME  Court  of  Errors  of  Connecticut.     1873. 

[Beported  40  Connecticut,  136] 

Carpenter,  J.^    The  prisoner  was  indicted  and  on  trial  for  murder 
ill  the  first  degree.     As  the  homicide  was  not  perpetrated  by  means  of 

1  See  accord  Flanigan  v.  People,  86  N.  Y.  554.  —  Ed. 
'  Part  of  the  opinion  only  is  given. 


360  PEOPLE    V.    WALKER.  [CHAP.  V. 

poison,  or  lying  in  wait,  or  in  committing  or  attempting  to  commit  any 
of  the  crimes  enumerated  in  the  statute,  he  could  only  be  convicted  of 
the  higher  offence  by  showing  that  it  was  a  wilful,  deliberate,  and 
premeditated  killing.  A  deliberate  intent  to  take  life  is  an  essential 
element  of  that  offence.  The  existence  of  such  an  intent  must  be 
shown  as  a  fact.  Implied  malice  is  sufficient  at  common  law  to  make 
the  offence  murder,  and  under  our  statute  to  make  it  murder  in  the 
second  degree  ;  but  to  constitute  murder  in  the  first  degree,  actual 
malice  must  be  proved.  Upon  this  question  the  state  of  the  prisoner's 
mind  is  material.  In  behalf  of  the  defence,  insanity,  intoxication,  or 
any  other  fact  which  tends  to  prove  that  the  prisoner  was  incapable  of 
deliberation,  was  competent  evidence  for  the  jury  to  weigh.  Intoxica- 
tion is  admissible  in  such  cases,  not  as  an  excuse  for  crime,  not  in 
mitigation  of  punishment,  but  as  tending  to  show  that  the  less  and  not 
the  greater  offence  was  in  fact  committed.  I  cite  a  few  only  of  the 
many  authorities  which  sustain  this  position.  Keenan  v.  The  Com- 
monwealth, 44  Pa,  55  ;  Roberts  v.  The  People,  19  Mich.  401  ;  Pigman 
V.  The  State,  14  Ohio,  555  ;  State  v.  Garvey,  11  Minn.  154;  Haile  v. 
The  State,  11  Humph.  154 ;  Shannahan  v.  The  Commonwealth,  8  Bush 
(Ky.),  463  ;  Ray's  Med.  Jur.  5th  ed.  566.^ 


PEOPLE  V.  WALKER. 
Supreme  Court  of  Michigan.     1878. 

[Reported  38  Michigan,  156  ] 

CooLEY,  J.^  The  defendant  was  convicted  in  the  court  below  for 
the  larceny  of  a  sum  of  money  from  one  Martin.  All  the  evidence  in 
the  case  tended  to  show  that  if  the  defendant  took  the  money  wrong- 
fully, it  was  while  he  was  under  the  influence  of  liquor,  and  some  of 
it  indicated  that  he  was  very  drunk. 

The  circuit  judge  was  requested  to  charge  the  jury,  that,  "  even  if 
the  jury  should  believe  that  defendant  was  intoxicated  to  such  an 
extent  as  to  make  him  unconscious  of  what  he  was  doing  at  the  time 
of  the  commission  of  the  alleged  offence,  it  is  no  excuse  for  him,  and 
they  should  not  take  it  into  consideration.  A  man  who  voluntarily  puts 
himself  in  condition  to  have  no  control  of  his  actions  must  be  lield  to 
intend  the  consequences."  This  charge  was  given  in  reliance  upon  the 
general  principle  that  drunkenness  is  no  excuse  for  crime. 

1  Ace.  Hopt  V.  People,  104  U.  S.  631;  Cartwright  v.  State,  8  Lea,  376;  Ferrell  r. 
State,  43  Tex.  503;  State  v.  Robinson,  20  W.  Va.  713. 

The  same  principle  would  seem  to  apply  where  it  is  desired  to  show  that  by  reason 
of  intoxication  an  intent  to  kill  was  absolutely  lacking,  and  so  to  reduce  the  degree  of 
a  homicide  to  manslaughter.     Reg.  v.  Doherty,  16  Cox  C.  C.  306.  —  Ed. 

*  Part  of  the  opinion  only  is  given. 


SECT.  III.]  ANONYMOUS.  361 

While  it  is  true  that  drunkenness  cannot  excuse  crime,  it  is  equally 
true  that  when  a  certain  intent  is  a  necessary  element  in  a  crime,  the 
crime  cannot  have  been  committed  when  the  intent  did  not  exist.  In 
larceny  the  crime  does  not  consist  in  the  wrongful  taking  of  the  prop- 
erty, for  that  might  be  a  mere  trespass  ;  but  it  consists  in  the  wrongful 
taking  with  felonious  intent;  and  if  the  defendant,  for  any  reason 
whatever,  indulged  no  such  intent,  the  crime  cannot  have  l)een  com- 
mitted. This  was  fully  explained  by  Mr.  Justice  Christiancy  in  Roberts 
V.  People,  19  Mich.  401,  and  is  familiar  law.  See  also  Nichols  v. 
State,  8  Ohio  St.  435  ;  Regina  v.  Moore,  3  C.  &  K.  319. 

The  circuit  court  should  be  advised  to  set  aside  the  verdict  and 
grant  a  new  trial. 

The  other  justices  concurred.^ 


SECTION   III. 

Coercion. 


ANONYMOUS. 

Assizes.     1352. 

[Reported  Liber  Assisanim,  137  pi.  40.] 

A  WOMAN  was  arraigned  for  that  she  had  feloniously  stolen  two 
shillings'  worth  of  bread.  She  said  that  she  did  it  by  command  of  him 
who  was  at  that  time  her  husband.  And  the  justices  out  of  pity  would 
not  accept  her  confession,  but  took  a  jury  ;  by  which  it  was  found 
that  she  did  it  by  coercion  of  her  husband,  in  spite  of  herself.  Where- 
fore she  was  acquitted.  And  it  was  said  that  by  command  of  a  husband, 
without  other  coercion,  there  shall  be  no  sort  of  felony,  etc.- 

1  See  to  the  same  effect  the  following  cases:  People  v.  Blake,  65  Cal.  275  (forgery); 
State  V.  Bell,  29  la.  316  (burglary);  Roberts  v.  People,  19  Mich.  401  (assault  with 
intent  to  kill);  Pignian  v.  State,  14  Ohio,  555  (passing  counterfeit  money).  — Ed. 

2  When  a  wife  commits  a  crime  in  her  husband's  presence,  the  presumption  is  that 
she  acted  by  his  coercion;  and  if  so,  she  is  excused.  Reg.  v.  Price,  8  C.  &  P.  19;  Com. 
V.  Eagan,  103  Mass.  71;  State  z;.  Williams,  65  N.  C.  398.  This  presumption  may, 
however,  be  rebutted  bv  proof  that  the  wife  did  not  act  by  the  husband's  coercion.  U.  S. 
V.  Terry,  42  F.  R.  317;  Seiler  v.  People,  77  N.  Y.  411;  Uhl  v.  Com.,  6  Gratt.  706; 
Miller  V.  State,  25  Wis.  384.  The  land  of  a  wife  who  left  the  country  with  her  hus- 
band was  held  not  liable  to  confiscation  under  the  "Absentee  Act"  in  Martin  v.  Com., 
1  Mass.  387.  —  Ed. 


362  m'growther's  case.  [chap.  v. 


ANONYMOUS. 

Cambridge  Assizes.     1664. 

[Reported  Kelyng,  31.] 

It  was  propounded  to  all  the  judges  :  If  a  man  and  his  wife  go 
both  together  to  commit  a  burglary,  and  both  of  them  break  a  house 
in  the  night,  and  enter  and  steal  goods,  what  offence  this  was  in  the 
wife  ;  and  agreed  by  all,  that  it  was  no  felony  in  the  wife,  for  the 
wife  being  together  with  the  husband  in  the  act,  the  law  supposeth 
the  wife  doth  it  by  coercion  of  the  husband.  And  so  it  is  in  all  larce- 
nies ;  but  as  to  murder,  if  husband  and  wife  both  join  in  it,  they  are 
both  equally  guilty.  Vid.  2  E.  III.  ;  F.  Corone.  160  ;  27  Ass.  pi.  40  :  F. 
Corone,  199;  Poulton  de  Pace,  126,  b;  and  the  case  of  the  Earl  of 
Somerset  and  his  lady,  both  equally  found  guilty  of  the  murder  of  Sir 
Thomas  Overbury,  by  poisoning  him  in  the  Tower  of  London  [2  How. 
St.  Tr.  951,  3  Co.  Inst.  49]. 


M'GROWTHER'S    CASE. 
Surrey  Special  AssIzes.^     1746. 

[Reported  Foster  C  L.  13.] 

In  the  case  of  Alexander  M'Growther,  there  was  full  evidence 
touching  his  having  been  in  the  rebellion,  and  his  acting  as  a  lieu- 
tenant in  a  regiment  in  the  rebel  army  called  the  Duke  of  Perth's  regi- 
ment.    The  defence  he  relied  on  was  that  he  was  forced  in. 

And  to  that  purpose  he  called  several  witnesses,  who  in  general 
swore  that  on  the  28th  of  August  the  person  called  Duke  of  Perth,  and 
the  Lord  Strathallan,  with  about  twenty  Highlanders,  came  to  the  town 
where  the  prisoner  lived  ;  that  on  the  same  day  three  several  sum- 
monses were  sent  out  by  the  Duke,  requiring  his  tenants  to  meet  him, 
and  to  conduct  him  over  a  moor  in  the  neighborhood,  called  Luiny 
Moor ;  that  upon  the  third  summons  the  prisoner,  who  is  a  tenant  to 
the  Duke,  with  about  twelve  of  the  tenants,  appeared  :  that  then  the 
Duke  proposed  to  them  that  they  should  take  arms  and  follow  him 
into  the  rebellion  ;  that  the  prisoner  and  the  rest  refused  to  go  ;  where- 
upon they  were  told  that  they  should  be  forced,  and  cords  were  brought 
by  the  Duke's  party  in  order  to  bind  them  ;  and  that  then  the  prisoner 
and  ten  more  went  off,  surrounded  by  the  Duke's  party. 

These  witnesses  swore  that  the  Duke  of  Perth  threatened  to  burn  the 

1  Coram  Lee,  C.  J.,  Willes,  C.  J.,  Wright  and  Foster,  J  J.,  Reynolds  and  Clive,  BB. 
Reported  also  18  How.  St.  Tr.  391.  —  Ed. 


SECT.  III.]  REGINA    V.    DYKKS.  363 

houses  and  to  drive  off  the  cattle  of  such  of  his  tenants  as  should 
refuse  to  follow  him. 

They  all  spake  very  extravagantly  of  the  power  lords  in  Scotland 
exercise  over  their  tenants,  and  of  the  obedience  (even  to  the  joining 
in  rebellion)  which  they  expect  from  them. 

Lord  Chief  Justice  Lee,  in  summing  up,  observed  to  tlie  jury  that 
there  is  not,  nor  ever  was,  any  tenure  which  obligeth  tenants  to  follow 
their  lords  into  rebellion. 

And  as  to  the  matter  of  force,  he  said  that  the  fear  of  having 
houses  burnt  or  goods  spoiled,  supposing  that  to  have  been  the  case  of 
the  prisoner,  is  no  excuse  in  the  eye  of  the  law  for  joining  and  marching 
■with  rebels. 

The  only  force  that  doth  excuse  is  a  force  upon  the  person,  and  pres- 
ent fear  of  death  ;  and  this  force  and  fear  must  continue  all  the  time 
the  party  remains  with  the  rebels.  It  is  incumbent  on  every  man,  who 
makes  force  his  defence,  to  shew  an  actual  force,  and  that  he  quitted 
the  service  as  soon  as  he  could  ;  agreeably  to  the  rule  laid  down  in 
Oldcastle's  Case,  that  they  joined  pro  timore  mortis,  et  recesserimt  quam 
cito  2^otuerunt. 

He  then  observed  that  the  only  force  the  prisoner  pretends  to  was 
on  the  28th  of  August ;  and  that  he  continued  with  the  rebels  and  bore 
a  commission  in  their  army  till  the  surrender  of  Carlisle,  which  was  on 
or  about  the  ;30th  of  December. 

The  jury  without  going  from  the  bar  found  him  guilty.  But  he  was 
not  executed. 

N.  B.  All  the  judges  that  were  in  town  were  present,  and  concurred 
in  the  points  of  law. 


REGINA   V.  DYKES. 
Maidstone  Assizes.    1885. 

[Reported  15  Cor  C  C  771.] 

In  this  case  the  two  prisoners,  who  were  husband  and  wife,  were 
charged  with  highway  robbery  with  violence. 

The  facts  as  proved  in  evidence  clearly  disclosed  the  felony  charged 
in  the  indictment,  but  as  regards  the  female  prisoner  there  was  some 
evidence  to  show  that  in  what  she  had  done,  and  in  the  violence  which 
she  bad  used  against  the  prosecutor,  she  was  acting  under  the  compul- 
sion of  her  husband,  and  in  fear  of  violence  from  him. 

H.  F.  Dickens,  for  the  prosecution. 

G.  L.  Denmon,  for  the  defence,  submitted,  on  the  authority  of  Reg. 
V.  Torpey,  12  Cox  C.  C.  45,  that  there  was  no  case  to  go  to  the  jury 
as  against  the  wife.  And  upon  the  learned  judge  ruling  that  it  wsjf. 
for  the  jury  to  find  whether  upon  the  facts  the  wife  had  acted  under 


364  COMMONWEALTH  V.    DALEY.  [CHAP.  V. 

the  coercion  of  her  husband  or  not,  addressed  the  jury  for  the  defence  ; 
and,  while  admitting  that  the  male  prisoner  must  be  convicted,  urged 
that  the  wife  had  really  acted  under  the  coercion  of  the  husband. 

The  learned  judge  [Stephen,  J.],  in  summing  up,  left  the  following 
questions  to  the  jury  :  — 

1.  Were  the  prisoners  individually  guilty  or  not  guilty?  This  ques- 
tion to  be  answered  as  if  they  were  uumarried. 

2.  If  both  are  found  guilty,  then  as  a  matter  of  fact  did  the  wife 
act  under  the  compulsion  of  her  husband  ? 

The  jury  found  both  prisoners  guilty,  but  also  found  that  the  wife 
had  acted  under  the  compulsion  of  the  husband. 

Upon  this  finding  counsel  for  the  defence  claimed  a  verdict  of  not 
guilty  in  favor  of  the  wife,  quoting  the  case  already  cited,  and  also 
Reg.  V.  Woodward,  8  C.  &  P.  561. 

After  consideration  the  learned  judge  directed  an  acquittal  to  be 
entered  for  the  wife,  who  was  discharged.^ 


COMMONWEALTH    v.  DALEY. 
Supreme  Judicial  Court  op  Massachusetts.    1888. 

[Reported  148  Massachusetts,  11.] 

C.  Allen,  J.^  When  a  married  woman  is  indicted  for  a  crime,  and 
it  is  contended  in  defence  that  she  ought  to  be  acquitted  because  she 
acted  under  the  coercion  of  her  husband,  the  question  of  fact  to  be 
determined  is  whether  she  really  and  in  truth  acted  under  such  coercion, 
or  whether  she  acted  of  her  own  free  will  and  independently  of  any 
coercion  or  control  by  him.  To  aid  in  determining  this  question  of 
fact,  the  law  holds  that  there  is  a  presumption  of  such  coercion  from 
his  presence  at  the  time  of  the  commission  of  the  crime  ;  this  presump- 
tion, however,  is  not  conclusive,  and  it  may  be  rebutted.  And  in  order 
to  raise  this  presumption  it  is  also  established  that  the  husband's  pres- 
ence need  not  be  at  the  very  spot,  or  in  the  same  room,  but  it  is 
sufficient  if  he  was  near  enough  for  her  to  be  under  his  immediate 
control  or  influence. 

No  exact  rule  applicable  to  all  cases  can  be  laid  down  as  to  what 
degree  of  proximity  will  constitute  such  presence,  because  this  may 
vary  with  the  varying  circumstances  of  particular  cases.     And  where 

1  See  Rex  v.  Buncombe,  1  Cox  C.  C.  183;  People  v.  Wright,  38  Mich.  744. 

"A  wife  may  be  indicted  together  with  her  husband,  and  condemned  to  the  pillory 
with  him  for  keeping  a  bawdy-house;  for  this  is  an  offence  as  to  the  government  of  the 
house,  in  which  the  wife  has  a  principal  share ;  and  also  such  an  offence  as  may  gener- 
ally be  presumed  to  be  managed  by  the  intrigues  of  her  sex."  1  Hawk.  P.  C.  eh.  1, 
8.  12.     See  Reg.  v.  Williams,  m  Med.  63;  State  v.  Bentz,  11  Mo.  27.  —  Ed. 

3  Part  of  the  opinion  only  is  given.  ' 


SECT.  IV.)  KEGINA   V.   SMITH.  365 

the  wife  did  not  act  in  the  direct  presence  of  her  husband  or  under  his 
eye,  it  must  usually  be  left  to  the  jury  to  deteruiiue  incidentally  whether 
his  presence  was  sufficiently  immediate  or  direct  to  raise  the  presump- 
tion. But  the  ultimate  question,  after  all,  is  whether  she  acted  under 
his  coercion  or  control,  or  of  her  own  free  will  independently  of  any 
coercion  or  control  by  him  ;  and  this  is  to  be  determined  in  view  of 
the  presumption  arising  from  his  presence,  and  of  the  testimony  or 
circumstances  tending  to  rebut  it,  if  any  such  exist.  Commonwealth 
V.  Burk,  11  Gray,  437;  Commonwealth  v.  Gannon,  97  Mass.  547; 
Commonwealth  v.  Welch,  97  Mass.  59.3  ;  Conmionwealth  v.  Eagan, 
103  Mass.  71  ;  Commonwealth  v.  Munsey,  112  Mass.  287;  Common- 
wealth V.  Gormley,  133  Mass.  580  ;  Commonwealth  v.  Flaherty,  140 
Mass.  454 ;  Commonwealth  v.  Hill,  145  Mass.  305,  307.^ 


SECTION   IV. 

Infancy :  Incorporation. 

1  Hawk.  P.  C.  cb.  1,  s.  14.  Neither  a  son  nor  a  servant  are  excused 
the  eoniniission  of  any  crime,  whether  capital  or  not  capital,  by  the 
command  or  coercion  of  the  father  or  master.^ 


REGINA  V.  SMITH. 
Somerset  Assizes.    1845. 

[Repbrted  1  Cox  C.  C.  260.] 

Indictment  for  maliciously  setting  fire  to  a  hayrick. 

It  appeared  that  the  prisoner  was  a  boy  of  the  age  of  ten  years. 
There  was  no  evidence  of  any  malicious  intention. 

Erle,  J.  (to  the  jury).  Where  a  child  is  under  the  age  of  seven 
years,  the  law  presumes  him  to  be  incapable  of  committing  a  crime  ; 
after  the  age  of  fourteen,  he  is  presumed  to  be  responsible  for  his  actions 
as  entirely  as  if  he  were  forty  ;  but  between  the  ages  of  seven  and  four- 
teen, no  presumption  of  law  arises  at  all,  and  that  which  is  termed  a 
malicious  intent,  —  a  guilty  knowledge  that  he  was  doing  wrong,  — 
must  be  proved  by  the  evidence,  and  cannot  be  presumed  from  the 

1  Where  a  crime  is  committed  by  a  wife  in  the  absence  of  her  husband  there  is  no 
presumption  of  coercion,  though  coercion  in  fact  may  be  shown.  Com.  v.-  Tryon,  99 
Mass.  442;  State  v.  Collins,  1  McCord,  355;  State  v.  Potter,  42  Vt.  495.  —  Ed. 

2  See  Com.  v.  Mead,  10  All.  398;  State  v.  Learnard,  41  Vt.  585.  —  Ed. 


366  COMMONWEALTH    V.  NEW    BEDFORD    BRIDGE.  [CHAP.  V. 

mere  commission  of  the  act.  You  are  to  determine  from  a  review  of 
the  evidence  whether  it  is  satisfactorily  proved  that  at  the  time  he  fired 
the  rick  (if  you  should  be  of  opinion  he  did  fire  it)  he  had  a  guilty 
knowledge  that  he  was  committing  a  crime  Not  guilty} 


COMMONWEALTH   v.  PROPRIETORS  OF   NEW   BEDFORD 

BRIDGE. 

SuPKEME  Judicial  Court  of  Massachusetts.    1854. 

[Reported  2  Gnni,  339.] 

Indictment  for  a  nuisance,  occasioned  by  the  erection  and  mainten- 
ance of  a  bridge  in  and  across  the  Acushnet,  a  navigable  river,  flowing 
between  the  city  of  New  Bedford  and  the  town  of  Fairhaven,  and 
thereby  filling  up  and  obstructing  the  navigation  of  the  river.  The* 
indictment  was  found  at  June  term,  1852,  of  the  Court  of  Common 
Pleas. 

At  the  trial  in  that  court,  before  Byington,  J.,  the  defendants 
admitted  that  they  had  erected  and  maintained  a  bridge  across  the 
Acushnet  River  ;  that  the  bridge  was  so  far  an  obstruction  to  the  navi- 
gation of  the  river,  that  its  erection  and  maintenance  could  only  be 
justified  under  an  act  of  the  legislature  ;  and  that,  without  such  justifi- 
cation, they  would  be  subject  to  a  prosecution  of  some  kind.  But  they 
contended  that  they  were  not  liable  to  indictment. 

The  defendants  gave  in  evidence  their  act  of  incorporation  (St.  1796, 
c.  19),  under  which  they  acted  in  maintaining  their  bridge. 

The  presiding  judge,  "being  of  opinion  that  the  several  questions 
of  law  are  so  important  or  doubtful  as  to  require  the  opinion  of  the 
Supreme  Judicial  Court,"  directed  a  verdict  of  guilty,  and  reported 
the  case,  with  the  consent  of  the  defendants,  for  the  consideration  of 
this  court. 

BiGELOW,  J.  The  indictment  in  the  present  case  is  for  a  nuisance. 
The  defendants  contend  that  it  cannot  be  maintained  against  them,  on 
the  ground  that  a  corporation,  although  liable  to  indictment  for  non- 
feasance, or  an  omission  to  perform  a  legal  duty  or  obligation,  are  not 

1  See  ncc  Rex  v.  Owen,  4  C.  &  P.  236;  Angelo  v.  People,  96  111.  209;  State  v.  Fow- 
ler,  52  la.  103;   State  v.  Adams,  76  Mo.  355;   State  v.  Doherty,  2  Overton,  80. 

Criminal  capacity  in  a  child  between  seven  and  fourteen  may  be  proved  by  evidence, 
or  may  be  inferred  from  the  circumstances  of  the  act.  4  Bl.  Com.  23;  Godfrey  i'.  State, 
31  Ala.  323;  State  v.  Toney,  15  S.  C.  409. 

As  to  proof  of  criminal  capacity,  see  Willet  v.  Com.,  13  Bush,  230;  Carr  v.  State, 
24  Tex.  App.  562. 

As  to  the  conclusive  presumption  that  a  boy  under  fourteen  cannot  be  guilty  of  rape, 
except  as  principal  in  the  second  degree,  see  Rex  v.  EUl'Mshaw,  3  C.  &  P.  396;  Cora.  v. 
Green,  2  Pick.  380  (supra);  Law  v.  Com.,  75  Va.  885.  —  Ed. 

2  Part  of  the  case  has  been  omitted. 


SECT.  IV.J         COMMON WKALTH    V.    NEW    BEnFORD    BRIDGE.  367 

amenable  in  this*  form  of  prosecution  for  a  misfeasance,  or  the  d(jiug 
of  any  act  unlawful  in  itself  and  injurious  to  the  rights  of  otherfc. 
There  are  dicta  in  some  of  the  early  cases  which  sanction  this  broad 
doctrine,  and  it  has  been  thence  copied  into  text  writers,  and  adopted 
to  its  full  extent  in  a  few  modern  decisions.  But  if  it  ever  had  any 
foundation,  it  had  its  origin  at  a  time  when  corporations  were  few  in 
number,  and  limited  in  their  powers,  and  in  the  puri)oses  for  which 
they  were  created.  Experience  has  shown  the  necessity  of  essentially 
modifying  it ;  and  the  tendency  of  the  more  recent  cases  in  courts  of 
the  highest  authority  has  been  to  extend  the  application  of  all  legal 
remedies  to  corporations,  and  assimilate  them,  as  far  as  possible,  in  their 
legal  duties  and  responsibilities,  to  individuals.  To  a  certain  extent, 
the  rule  contended  for  is  founded  in  good  sense  and  sound  principle. 
Corporations  cannot  be  indicted  for  offences  which  derive  their  crimi- 
nality from  evil  intention,  or  which  consist  in  a  violation  of  those  social 
duties  which  appertain  to  men  and  subjects.  They  cannot  be  guilty 
of  treason  or  felony,  of  perjury  or  offences  against  the  person.  But 
beyond  this,  there  is  no  good  reason  for  their  exemption  from  the  con- 
sequences of  unlawful  and  wrongful  acts  committed  by  their  agents  in 
pursuance  of  authority  derived  from  them.  Such  a  rule  would,  in 
many  cases,  preclude  all  adequate  remedy,  and  render  reparation  for 
an  injury,  committed  by  a  corporation,  impossible  ;  because  it  would 
leave  the  only  means  of  redress  to  be  sought  against  irresponsible  ser- 
vants, instead  of  against  those  who  truly  committed  the  wrongful  act 
by  commanding  it  to  be  done.  There  is  no  principle  of  law  which 
would  thus  furnish  immunity  to  a  corporation.  If  they  commit  a  tres- 
pass on  private  property,  or  obstruct  a  way  to  the  special  injury  and 
damage  of  an  individual,  no  one  can  doubt  their  liability  therefor.  In 
like  manner,  and  for  the  same  reason,  if  they  do  similar  acts  to  the 
inconvenience  and  annoyance  of  the  public,  they  are  responsible  in 
the  form  and  mode  appropriate  to  the  prosecution  and  punishment  of 
such  offences.  Angell  &  Ames  on  Corp.  ss.  394-396  ;  Maund  v.  Mon- 
mouthshire Canal,  4  M.  &  G.  452,  and  5  Scott  N.  R.  457  ;  The  Queen 
V.  Birmingham  &  Gloucester  Railway,  3  Q.  B.  223  ;  The  Queen  v. 
Great  North  of  England  Railway,  9  Q.  B.  315,  and  2  Cox  C.  C.  70; 
Eastern  Counties  Railway  v.  Broom,  6  Ex.  314  ;  The  State  v.  Morris 
&  Essex  Railroad,  23  N.  J.  (3  Zab.)  360.  If,  therefore,  the  defend- 
ants have  been  guilty  of  a  nuisance,  by  obstructing  unlawfully  a  navi- 
gable stream,  an  indictment  may  well  be  maintained  against  them.  It 
may  be  added  that  the  distinction  between  a  non-feasance  and  a  mis- 
feasance is  often  one  more  of  form  than  of  substance.  There  are  cases 
where  it  would  be  difficult  to  say  whether  the  offence  consisted  in  the 
doing  of  an  unlawful  act,  or  in  the  doing  of  a  lawful  act  in  an  improper 
manner.  In  the  case  at  bar,  it  would  be  no  great  refinement  to  say 
that  the  defendants  are  indicted  for  not  constructing  tlieir  draws  in  a 
suitable  manner,  and  thereby  oltstructing  navigation,  which  would  be 
a  non-feasance,  and   not  for  unlawfully  placmg   obstructions  in  the 


368  levett's  case.  [chap.  v. 

river,  which  would  be  a  misfeasance.  The  difficulty  in  distinguishing 
the  character  of  these  offences  strongly  illustrates  the  absurdity  of  the 
doctrine  that  a  corporation  are  indictable  for  a  non-feasance,  but  not 
for  a  misfeasance.     See  9  Q.  B.  325.^ 


SECTION  V. 

Ignorance  or  Mistake. 

1  Hale  P.  C.  42.  Ignorance  of  the  municipal  law  of  the  kingdom, 
or  of  the  penalty  thereby  inflicted  upon  offenders,  doth  not  excuse  any 
that  is  of  the  age  of  discretion  and  compos  tnefitis  from  the  penalty  of 
the  breach  of  it ;  because  every  person  of  the  age  of  discretion  and 
compos  mentis  is  bound  to  know  the  law,  and  presumed  so  to  do ; 
Ignoratitia  eorum  gum  quis  scire  tenetur  nan  excusat. 

But  in  some  cases  ignorantia  facti  doth  excuse,  for  such  an  igno- 
rance many  times  makes  the  act  itself  morally  involuntary  ;  and  in- 
deed many  of  the  cases  of  misfortune  and  casualty  mentioned  in  the 
former  chapter  are  instances  that  fall  in  with  this  of  ignorance  :  I  shall 
add  but  one  or  two  more. 

It  is  known  in  war  that  it  is  the  greatest  offence  for  a  soldier  to  kill, 
or  so  much  as  to  assault  his  general ;  suppose,  then,  the  inferior  officer 
sets  his  watch,  or  sentinels,  and  the  general,  to  tiy  the  vigilance  or 
courage  of  his  sentinels,  comes  upon  them  in  the  night  in  the  posture 
of  an  enemy  (as  some  commanders  have  too  rashl}'  done),  the  sentinel 
strikes,  or  shoots  him,  taking  him  to  be  an  enemy  ;  his  ignorance  of 
the  person  excuseth  his  offence.^ 


LEVETT'S   CASE. 

Newgate  Sessions.     1638. 

[Reported  Croke  Car.  538.] 

Jones  said  that  it  was  resolved  by  the  Chief  Justice  Brampton,  him- 
self, and  the  Recorder  of  London,  at  the  last  sessions  at  Newgate,  in 
the  case  of  one  William  Levett,  who  was  indicted  of  the  homicide  of 
a  woman  called  Frances  Freeman,  where  it  was  found  by  special  ver- 
dict that  the  said  Levett  and  his  wife  being  in  the  night  in  bed  and 

'  As  to  the  criminal  liability  of  members  of  a  corporation  who  take  part  in  its  crimi- 
nal acts,  see  Reg.  i-.  Ry.,  9  Q.  B.  315,  327;  People  v.  England,  27  Hun,  139.  —  Ed. 
^  Here  follows  a  statement  of  Levett's  Case,  infra.  -  -  Eb. 


SECT,  v.]  KEX   V.   BAILEY.  369 

asleep,  one  Martha  Stapleton,  their  servant,  having  procured  the  said 
Frances  Freeman  to  help  her  about  house-business,  about  twelve  of 
the  clock  at  night  going  to  the  doors  to  let  out  the  said  Frances  Free- 
man, conceived  she  heard  thieves  at  the  doors  olFering  to  break  them 
open  ;  whereupon  she,  in  fear,  ran  to  her  master  and  mistress,  and 
informed  them  she  was  in  doubt  that  thieves  were  breaking  open  the 
house-door.  Upon  that  he  arose  suddenly  and  fetched  a  drawn  rapier. 
And  the  said  Martha  8ta[)leton,  lest  her  master  and  mistress  should 
see  the  said  Frances  Freeman,  hid  iier  in  the  buttery.  And  tiie  said 
Levett  and  Helen  his  wife  comiug  down,  he  with  his  sword  searched 
the  entry  for  the  thieves ;  and  she,  the  said  Helen,  espying  in  the 
butter^'  the  said  Frances  Freeman,  whom  she  knew  not,  conceiving  she 
had  been  a  thief,  crying  to  her  husband  in  great  fear,  said  to  him, 
"Here  they  be  that  would  undo  us."  Thereupon  the  said  William 
Levett,  not  knowing  the  said  Frances  to  be  there  in  the  butter}-,  has- 
tily entered  therein  with  his  drawn  rapier,  and  being  in  the  dark  and 
thrusting  with  his  rapier  before  him,  thrust  the  said  Frances  under 
the  left  breast,  giving  to  her  a  mortal  wound,  whereof  she  instantly 
died  ;  and  whether  it  were  manslaughter,  they  prayed  the  discretion  of 
the  court.  And  it  was  resolved  that  it  was  not ;  for  he  did  it  igno- 
rantl}'  without  intention  of  hurt  to  the  said  Frances  ;  and  it  was  there 
so  resolved.^ 


REX   V.    BAILEY. 
Crown  Case  Reserved.     1800. 

[Repotted  Russell  ^-  Ryan,  1.] 

The  prisoner  was  tried  before  Loi'd  Eldon,  at  the  Admiralty  Ses- 
sions, December,  1799,  on  an  indictment  for  wilfully  and  maliciously 
shooting  at  Henrv  Truscott.^ 

It  was  insisted  that  the  prisoner  could  not  be  found  guilty  of  the 
offence  with  which  he  was  charged,  because  the  Act  of  the  39  Geo.  III. 
c.  37,  upon  which  (together  with  the  statute  relating  to  maliciously 
shooting,  9  Geo.  I.  c.  22,  "Black  Act")  the  prisoner  was  indicted  at 
this  Admiralty  Sessions,  and  which  act  of  the  39  Geo.  III.  is  entitled 
''  An  act  for  amending  certain  defects  in  the  law  respecting  offences 
committed  on  the  high  seas,"  only  received  the  royal  assent  on  the 
10th  of  May,  1799,  and  the  fact  charged  in  the  indictment  happened 
on  the  27th  of  June,  in  the  same  year,  when  the  prisoner  could  not 
know  that  any  such  act  existed  (his  ship,  the  "  Langley,"  being  at 
that  time  upon  the  coast  of  Africa.) 

Lord  Eldon  told  the  jury  that  he  was  of  opinion  that  he  was,  in 

1  See  Regina  r.  Lynch,  1  Oox  C.  C.  361 ;  McGehee  v.  State,  62  Miss.  772.  —  Ed. 
'  Part  of  the  case  is  omitted 


370  REX   V.    HALL.  [chap.  V. 

strict  law,  guilty  within  the  statutes,  taken  together,  if  the  facts  laid 
were  proved,  though  he  could  not  then  know  that  the  act  of  the  39 
Geo.  III.  c.  37  had  passed  ;  and  that  his  ignorance  of  that  fact  could  in 
no  otherwise  affect  the  case  than  that  it  might  be  the  means  of  recom- 
mending him  to  a  merciful  consideration  elsewhere  should  he  be  found 
guilty. 

On  the  first  day  of  Hilary  term,  1800,  all  the  Judges  (except  Mr. 
Justice  Buller)  met  at  Lord  Kenyon's  chambers,  and  were  of  opinion 
that  it  wouid  be  proper  to  apply  for  a  pardon,  on  the  ground  that  the 
fact  having  been  committed  so  short  a  time  after  the  Act  39  Geo.  III. 
c.  37  was  passed,  that  the  prisoner  could  not  have  known  of  it.^ 


REX  V.   HALL. 
Gloucester  Assizes.     1828. 

[^Reported  3  Carrington  Sf  Pai/ne,  409.) 

Indictment  for  robbing  John  Green,  a  gamekeeper  of  Lord  Ducie, 
of  three  hare  wires  and  a  pheasant.  It  appeared  that  the  prisoner  had 
set  three  wires  in  a  field  belonging  to  Lord  Ducie,  in  one  of  which  this 
pheasant  was  caught,  and  that  Green,  the  gamekeeper,  seeing  this, 
took  up  the  wires  and  pheasant  and  put  them  into  his  pocket ;  and  it 
further  appeared  that  the  prisoner  soon  after  this  came  up  and  said, 
"  Have  you  got  my  wires?  "  The  gamekeeper  replied  that  he  had  and 
a  pheasant  that  was  caught  in  one  of  them.  The  prisoner  then  asked 
the  gamekeeper  to  give  the  pheasant  and  wires  up  to  him,  which  the 
gamekeeper  refused  ;  whereupon  the  prisoner  lifted  up  a  large  stick 
and  threatened  to  beat  the  gamekeeper's  brains  out  if  he  did  not  give 
them  up.     The  gamekeeper,  fearing  violence,  did  so. 

Maclean,  for  the  prosecution,  contended  that  by  law  the  prisoner 
could  have  no  property  in  either  the  wires  or  the  pheasant,  and  as  the 
gamekeeper  had  seized  them  for  the  use  of  the  lord  of  the  manor, 
under  the  statute  5  Anne  c.  14,  s.  4,  it  was  a  robbery  to  take  them  from 
him  by  violence. 

Vaughan,  B.  I  shall  leave  it  to  the  jury  to  say  whether  the  prisoner 
acted  on  an  impression  that  the  wires  and  pheasant  were  his  property; 
for  however  he  might  be  liable  to  penalties  for  having  them  in  his 
possession,  yet  if  the  jury  think  that  he  took  them  under  a  boyiafide 

^  "Although  proclamation  be  not  made  in  the  county,  every  one  is  bound  to  take 
notice  of  that  which  is  done  in  parliament ;  for  as  soon  as  the  parliament  hath  con- 
cluded anything,  the  law  intends  that  every  person  hath  notice  thereof,  for  the  parlia- 
ment represents  the  body  of  the  whole  realm ;  and  therefore  it  is  not  requisite  that 
any  proclamation  be  made,  seeing  the  statute  took  effect  before."  —  Thorpe,  C.  J.,  in 
y.  B.  39  Edw.  III.  7  (translation  of  Coke,  4  Inst.  26).     See  Brig  Ann,  1  Gall.  62.  —  Ed. 


SECT.  V.J  REX  V.    Hsor.  371 

impression  that  he  was  only  getting  back  the  possession  of  his  own 
property,  there  is  no  animus  faraudi,  and  I  am  of  opinion  tliat  the 
prosecution  must  fail.  Verdict,  Xot  guihn  i 


REX   V.    ESOP. 

Central  Criminal  Court.     1836. 

[Reported  7  Ccirrington  ^-  Payne,  456.] 

The  prisoner  was  indicted  for  an  unnatural  offence,  committed  on 
board  of  an  East  India  ship,  lying  at  St.  Katherine's  Docks,  It 
appeared  that  he  was  a  native  of  Bagdad. 

Chambers,  for  the  prisoner.  In  the  country  from  which  the  priso- 
ner comes  it  is  not  considered  an  offence  ;  and  a  person  who  comes 
into  this  country  and  does  an  act,  believing  that  it  is  a  perfectly  inno- 
cent one,  cannot  be  convicted  according  to  tlie  law  of  England.  A 
party  must  know  that  what  he  does  is  a  crime.  This  is  the  principle 
upon  which  infants,  idiots,  and  lunatics  are  held  not  to  be  answerable. 
If  a  person  is  unconscious  that  he  is  doing  a  wrong  act.  or  believes 
that  it  is  a  right  or  innocent  act,  he  is  exonerated.  Where  one  man 
kills  another  under  the  persuasion  that  he  is  doing  a  good  action,  he  is 
not  liable  to  punishment,  for  he  knows  not  the  distinction  between 
right  and  wrong,  and  upon  that  point  is  insane. 

BosANQUET,  J.  I  am  clearly  of  opinion  that  this  is  no  legal  de- 
fence. 

Vaughan,  J.  Where  is  the  evidence  that  it  is  not  a  crime  in  the 
prisoner's  own  country?  But  if  it  is  not  a  crime  there,  that  does 
not  amount  to  a  defence  here.  Numbers  have  been  most  improperly 
executed  if  it  Is  a  defence. 

The  prisoner,  after  the  examination  of  some  witnesses  on  his  behalf, 
from  whose  statements  it  appeared  that  the  witnesses  for  the  prosecu- 
tion acted  under  the  influence  of  spite  and  ill  will,  was  found 

Not  guilty.^ 

1  "Ignorance  of  the  law  cannot  excuse  any  jierson;  but  at  the  same  time,  when  the 
question  is  with  what  intent  a  person  takes,  we  cannot  help  looking  into  their  state  of 
mind,  as  if  a  person  take  what  he  believes  to  be  his  own,  it  is  impossible  to  say  that  he 
is  guilty  of  felony."  —  Coleridge,  J.,  in  Reg.  v.  Reed,  C.  &  M.  306.  See  Beg.  v.  Hem- 
mings,  4  F.  k  F.  50;  Com.  v.  Stebbins,  8  Gray,  492.  —  Ed. 

^  See  ace.  Barrouet's  Case,  1  £.  &  B.  1.  —  Ed. 


372  ANONYMOUS.  [CHAP.  V. 


ANONYMOUS. 

Western    Circuit.     17  — . 
[Reported  Foster  C.  L.  (3c?  ed.)  439.] 

A  WIDOW  WOMAN  was  indicted  on  the  statute  9  and  10  "W.  III.  c.  41, 
for  having  in  her  custody  divers  pieces  of  canvas  marked  with  his 
Majesty's  niaric  in  the  manner  described  in  the  Act,  she  not  being  a 
person  employed  by  the  commissioners  of  the  navj'  to  make  the  same 
for  his  Majesty's  use. 

The  canvas  was  produced  at  tlie  trial  marked  as  charged  in  the 
indictment,  and  was  proved  to  the  satisfaction  of  the  court  and  jury 
to  be  of  that  sort  which  is  commonly  made  for  the  use  of  the  navy 
and  to  have  been  found  in  the  defendant's  custody. 

The  defendant  did  not  attempt  to  show  that  she  was  within  the 
exception  of  the  Act,  as  being  a  person  employed  to  make  canvas  for 
the  use  of  the  navy  ;  nor  did  slie  offer  to  produce  an}'  certificate  from 
any  officer  of  the  Crown  touching  the  occasion  and  reason  of  such 
canvas  coming  into  her  possession. 

Her  defence  was  that  when  there  happened  to  be  in  his  Majesty's 
stores  a  considerable  quantity  of  old  sails,  no  longer  fit  for  that  use, 
it  had  been  customary  for  the  persons  intrusted  with  the  stores  to 
make  a  public  sale  of  them  in  lots  larger  or  smaller  as  best  suited  the 
purpose  of  the  bu3'ers ;  and  that  the  canvas  produced  in  evidence, 
which  happened  to  have  been  made  up  long  since,  some  for  table-linen 
and  some  for  sheeting,  had  been  in  common  use  in  the  defendant's 
family  a  considerable  time  before  her  husband's  death,  and  upon  his 
death  came  to  the  defendant,  and  had  been  used  in  the  same  public 
manner  by  her  to  the  time  of  the  prosecution.  This  was  proved  by 
some  of  the  family,  and  by  the  woman  who  had  frequently  washed  the 
hnen. 

This  sort  of  evidence  was  strongly  opposed  by  the  counsel  for  the 
Crown,  who  insisted  that,  as  the  Act  allows  of  but  one  excuse,  the 
defendant,  unless  she  can  avail  herself  of  that,  cannot  resort  to  any 
other ;  for  if  the  canvas  was  really  bought  of  the  commissioners  or  of 
persons  acting  under  them,  which  is  the  only  excuse  pointed  out  by 
the  statute,  why  was  no  certificate  of  that  matter  taken  at  the  time 
of  the  purchase,  since  the  fourth  section  of  the  Act  admits  of  that 
excuse,  and  the  second  section  admits  of  no  other  ? 


SECT,  v.]  KEGINA    V.   TINKLER.  373 

But  the  judge  [Foster,  J.]  was  of  opinion  that,  tliough  the  clause 
of  the  statute  which  directs  the  sale  of  these  things  hath  not  pointed 
out  any  other  way  for  indemnifying  the  buyer  than  the  certificate  ;  and 
though  the  second  section  seems  to  exclude  any  otlier  excuse  for  those 
in  whose  custody  they  shall  be  found ;  yet  still  the  circumstances  at- 
tending ever}'  case  which  may  seem  to  fall  within  the  Act  ought  to 
be  taken  into  consideration  ;  otherwise  a  law  calculated  for  wise  pur- 
poses may,  by  too  rigid  a  construction  of  it,  be  made  a  handmaid  to 
oppression.  There  is  no  room  to  say  that  this  canvas  came  into  the 
possession  of  the  defendant  by  any  act  of  her  own.  It  was  brought 
into  famil}'  use  in  the  lifetime  of  her  husband,  and  it  continued  so  to 
the  time  of  his  death  ;  and  by  act  of  law  it  came  to  her.  Things  of 
this  kind  have  been  frequentl}'  exposed  to  public  sale  ;  and  though  the 
Act  points  out  an  expedient  for  the  indemnity  of  the  buyers,  yet  prob- 
ably few  buyers,  especiall}'  where  small  quantities  have  been  purchased 
at  one  sale,  have  used  the  caution  suggested  to  them  by  the  Act.  And 
if  the  defendant's  husband  really  bought  this  linen  at  a  public  sale,  but 
neglected  to  take  a  certificate,  or  did  not  preserve  it,  it  would  be  con- 
trary to  natural  justice,  after  this  length  of  time,  to  punish  her  for  his 
neglect.  He  therefore  thought  the  evidence  given  by  the  defendant 
proper  to  be  left  to  the  jury,  and  directed  them  that  if,  upon  the  whole 
of  the  evidence,  they  were  of  opinion  that  the  defendant  came  to  the 
possession  of  the  linen  without  any  fraud  or  misbehavior  on  her  part, 
they  should  acquit  her  ;  and  she  was  acquitted. 


REGINA   V.   TINKLER. 
Norfolk  Circuit.     1859. 

[Reported  1  Foster  ^-  Finlason,  513.] 

The  prisoner  was  indicted,  under  the  9  Geo.  IV.,  c.  31,  s.  20,  for 
unlawfully  taking  one  Sarah  Thompson,  she  being  then  unmarried,  and 
under  the  age  of  sixteen  years,  out  of  the  possession  and  against  the 
will  of  Jane  Barnes,  her  lawful  guardian. 

It  appeared  that  the  prisoner,  who  was  a  widower,  had  married  the 
elder  sister  of  Sarah  Thompson,  and  up  to  the  time  of  his  wife's  death, 
Sarah  Thompson,  who  was  an  orphan,  had  lived  in  the  prisoner's 
house.  On  that  occasion,  Mary  Johnson,  another  married  sister  of 
Sarah  Thompson,  caused  her  to  be  placed  under  the  care  of  Jane 
Barnes. 

No  improper  motive  was  alleged  against  the  prisoner,  he  having 
asserted,  as  his  reason  for  taking  the  child  away,  that  he  had  promised 
her  father,  on  his  deathbed,  to  take  care  of  her. 

The  Chief  Justice  [Cockburn]  told  the  jury  that  it  was  clear  the 
prisoner  had  no  right  to  act  as  he  had  done  in  taking  the  child  out  of 


374  KEGINA    V.    TOWSE.  [CIIAP,  V. 

Mrs.  Barnes's  custody.  But  inasmuch  as  no  improper  motive  was 
suggested  on  the  part  of  the  prosecution,  it  might  very  well  be  con- 
cluded that  the  prisoner  wished  the  child  to  live  with  him,  and  that 
he  meant  to  discharge  the  promise  which  he  alleged  he  had  made  to 
her  father,  and  that  he  did  not  suppose  he  was  breaking  the  law  when 
he  took  the  child  away.  This  being  a  criminal  prosecution,  if  the  jury 
should  take  this  view  of  the  case,  and  be  of  opinion  that  the  prisoner 
honestly  believed  that  he  had  a  right  to  the  custody  of  the  child,  then 
although  the  prisoner  was  not  legally  justified,  he  would  be  entitled  to 
an  acquittal  upon  this  charge.^ 

The  Jury  found  the  prisoner  not  guilty. 


REGINA  u  TOWSE. 
Exeter  Assizes.  1879. 
[Reported  14  Cox  C.  C.  327.] 

Prisoner  was  indicted  for  having  set  fire  to  some  furze  growing  on 
a  common  at  Culmstock.^ 

It  appeared  from  the  evidence  that  persons  living  near  the  common 
had  occasionally  burnt  the  furze  to  improve  the  growth  of  the  grass, 
although  the  existence  of  any  right  to  do  this  was  denied. 

But  the  prisoner  in  this  case  denied  having  set  the  furze  on  fire 
at  all. 

jBidlen,,  for  the  defence,  contended  that  even  if  it  were  proved  that 
the  prisoner  set  the  furze  on  fire  she  could  not  be  found  guilty  if  it 
appeared  that  she  bona  fide  believed  she  had  a  right  to  do  so,  whether 
the  right  were  a  good  one  or  not. 

Lopes,  J.  If  she  set  fire  to  the  furze  thinking  she  had  a  right  to  do 
so  that  would  not  be  a  criminal  offence.  I  shall  leave  two  questions  to 
the  jury.  I.  Did  she  set  fire  to  the  furze?  2.  If  yes,  did  she  do  it 
wilfully  and  maliciously? 

'  "  Whosoever  shall  unlawfully  and  maliciousl}'  set  fire  to  any  .  .  .  furze  or  fern, 
wheresoever  the  same  may  be  growing,  shall  be  guilty  of  felony."  24  &  25  Vict.  c.  97, 
9.  16.  —Ea. 


SECT.   \'.]  COMMONWEALTH  V.    THOMPSON.  375 


COMMONWEALTH  v.   THOMPSON. 
Supreme  Judicial  Court  of  Massachusetis.     1863. 

[Reported  &  Allen,  591.] 

Indictment  for  adultery  with  Eraeline  B.  Carlton. 
At  the  trial  in  the  Superior  Court,  before  Rockwell,  J.,  it  appeared 
that  in  November,  1861,  the  defendant  was  married  to  said  Emeline, 
and  lived  with  her  as  his  wife  thereafter.  The  defendant  contended 
on  the  evidence  whicli  was  offered  that  he  then  believed  her  to  be  a 
widow,  and  that  she  had  no  knowledge  that  her  former  husband  was 
alive,  and  had  not  seen  or  heard  from  him  for  eleven  years  ;  and  he 
asked  the  court  to  instruct  the  jiu-y  that  if  he  married  and  cohabited 
with  her  without  any  knowledge  that  she  had  a  husband  living,  and 
believing  that  she  had  no  Imsband  living,  such  cohabitation  would  not 
amount  to  the  crime  of  adulter}-,  even  if  her  husband  was  not  dead. 
The  judge  refused  to  give  these  instructions,  but  instructed  the  jury 
that  if  they  were  satisfied  that  the  intercourse  took  place  as  alleged, 
it  would  be  adultery  if  the  former  husl)and  wa^  still  living,  although 
the  defendant  had  no  knowledge  or  belief  that  he  was  alive  ;  and  he 
excluded  the  evidence  which  was  offered. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions. 

G.  F.  Verry,  for  the  defendant. 
Foster,  Attorney-General,  for  the  Commonwealth. 
Dewey,  J.  The  court  properly  refused  to  rule  that  upon  the  mere 
showing  that  the  defendant  married  the  said  Emeline  B.  Carlton  and 
cohabited  with  her  without  any  knowledge  that  she  had  a  husband 
living,  and  believing  that  she  had  no  husband  living,  the  defendant 
could  not  be  convicted  of  adultery,  although  she  then  had  a  legal  hus- 
band in  full  life. 

The  objection  urged  in  behalf  of  the  defendant,  that  to  make  any 
act  criminal  there  must  be  a  criminal  intent,  will  not  screen  the  guilty 
party  under  such  circumstances.  Commonwealth  v.  Mash,  7  Met. 
474. 

This  would  dispose  of  the  case  but  for  the  facts  which  were  offered 
to  be  proved,  that  the  husband  had  been  absent  from  his  wife  for 
eleven  years  preceding  the  time  when  the  acts  complained  of  took 
place,  and  that  his  wife  had  not  seen  or  heard  of  him  during  that 
period,  and  had  no  knowledge  that  he  was  alive. 

It  is  a  well  settled  rule  of  law  that,  upon  a  person's  leaving  his  home 
for  temporar}'  purposes  of  business  or  pleasure,  and  not  being  heard 
of  or  known  to  be  living  for  the  term  of  seven  years,  the  presumption 
arises  of  his  death.  2  Stark.  Ev.  (4th  Amer.  ed.)  458.  Loring  v. 
Stelneraan,  1  Met.  211.  Although  this  is  merely'  a  presumption  au- 
thorized by  law,  and  ma^-  be  controlled  by  evidence  showing  that  the 


376  STATE  V.   GOODEXOW.  [CHAP.  V. 

fact  was  otherwise,  yet  in  reference  to  acts  of  other  parties,  and  in 
deciding  whether  they  are  criminal,  this  presumption  is  allowed  to 
have  its  proper  effect.  Thus  in  reference  to  the  criminal  intercourse 
alleged  to  have  taken  place  between  Mrs.  Carlton  and  the  defendant, 
supposing  she  had  been  indicted  for  polygam\',  and  the  fact  had  ap- 
peared of  the  absence  of  her  husband  for  eleven  years,  she  not  knowing 
him  to  be  living  during  that  time,  this  would  constitute  a  legal  defence 
to  the  criminal  charge.  Gen.  Sts.  c.  165,  §  5.  We  think  this  statute, 
though  not  in  terms  applicable  to  an  indictment  for  adultery,  recog- 
nizes a  rule  that  should  operate  as  a  legal  defence  to  the  charge  of 
adultery,  when  the  alleged  criminal  acts  are  the  mai-rying  and  cohabit- 
ing with  a  woman  whose  husband  had  been  absent  more  than  seven 
years,  and  not  known  to  the  defendant  to  have  been  alive  during  that 
period. 

The  proper  instructions  to  the  jur}-  in  a  case  like  the  present  would 
be,  that  if  it  appeared  that  the  husband  had  absented  himself  from 
his  wife,  and  remained  absent  for  the  space  of  seven  years  together, 
a  man  who  should,  under  the  existence  of  such  circumstances,  and 
not  knowing  her  husband  to  have  been  living  within  that  time,  in  good 
faith  and  in  the  belief  that  she  had  no  husband,  intermarry'  with  her 
and  cohabit  with  her  as  his  wife,  would  not  by  such  acts  be  criminallj' 
punishable  for  adultery,  although  it  should  subsequent!}'  appear  that 
the  former  husband  was  then  living. 

Exceptions  sustaiJied} 


STATE   V.   GOODENOW. 
Supreme  Judicial  Court  of  Maine.     1876. 

[Reported  65  Maine,  30.] 

Peters,  J.^  The  respondents  are  jointl}'  indicted  for  adulter}',  they 
having  cohabited  as  husband  and  wife  while  the  female  respondent 
was  lawfulh'  married  to  another  man  who  is  still  alive.  The  only 
question  found  in  the  exceptions  is,  whether  the  evidence  offered  and 
rejected  should  have  been  received.  This  was,  that  the  lawful  hus- 
band had  married  again,  and  that  the  justice  of  the  peace  who  united 
the  respondents  in  matrimony  advised  them  that,  on  that  account,  they 
had  the  right  to  intermarr}',  and  that  they  believed  the  statement  to 
be  true,  and  acted  upon  it  in  good  faith.  It  is  urged  for  the  respond- 
ents that  those  facts  would  show  that  they  acted  without  an}'  guilty 
intent.     It  is  undoubtedly  true  that  the  crime  of  adultery  cannot  be 

1  On  a  new  trial  it  appeared  that  Emeline  B.  Carlton  had  herself  left  her  husband, 
of  whom  she  had  not  thereafter  heard  for  eleven  years.  As  the  exception  in  the  stat- 
ute (Gen.  Stats,  c.  16.5,  §  5)  did  not  cover  the  case,  defendant  was  found  guilty,  and 
the  conviction  upheld.     11  All.  23. —  Eu. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT,  v.]  STATE   V.    GOODENOW.  377 

committed  without  a  criminal  intent.  But  the  intent  may  be  inferred 
from  the  criminality  of  the  act  itself.  Lord  Mansfield  states  the  rule 
thus:  "Where  an  act,  in  itself  indifferent,  becomes  criminal  if  done 
with  a  particular  intent,  there  the  intent  must  be  proved  and  found  ; 
but  where  the  act  is  in  itself  unlawful,  the  proof  of  justification  or 
excuse  lies  on  the  defendant ;  and  in  failure  thereof,  the  law  implies 
a  criminal  intent." 

Here  the  accused  have  intentionall\'  committed  an  act  which  is  in 
itself  unlawful.  In  excuse  for  it,  they  plead  their  ignorance  of  the 
law.  This  cannot  excuse  them.  Ignorance  of  the  law  excuses  no 
one.  Besure,  this  maxim,  like  all  others,  has  its  exceptions.  None 
of  the  exceptions,  however,  can  apply  here.  The  law,  which  the  re- 
spondents are  conclusively  presumed  to  have  known,  as  applicable  to 
their  case,  is  well  settled  and  free  of  all  obscurity  or  doubt.  It  would 
perhaps  be  more  exact  to  sa}-,  they  are  bound  as  if  the}'  knew  the 
law.  Late  cases  furnish  some  interesting  discussions  upon  this  sub- 
ject. Cutter  V.  State,  36  New  Jer.  125  ;  United  States  v.  Anthony, 
11  Blatch.  200;  United  States  v.  Taintor,  id.  374;  2  Green's 
Crim.  Law  R.  218,  244,  275,  589;  Black  v.  Ward,  27  Mich.  191; 
s.  c.  15  Amer.  Law  Reports,  162  and  note,  171.  The  rule,  though 
productive  of  hardsliip  in  particular  cases,  is  a  sound  and  salutary 
maxim  of  the  law.  Then  the  respondents  say  that  they  were  misled 
by  the  advice  of  the  magistrate,  of  whom  they  took  counsel  concerning 
their  marital  relations.  But  the  gi'oss  ignorance  of  the  magistrate 
cannot  excuse  them.  They  were  guilty  of  negligence  and  fault,  to 
take  his  advice.  They  were  bound  to  know  or  ascertain  the  law  and 
the  facts  for  themselves  at  their  peril.  A  sufficient  criminal  intent  is 
conclusively  presumed  against  them,  in  their  failure  to  do  so.  The 
facts  offered  in  proof  may  mitigate,  but  cannot  excuse,  the  offence 
charged  against  them.  There  is  no  doubt  that  a  person  might  commit 
an  unlawful  act,  through  mistake  or  accident,  and  with  innocent  in- 
tention, where  there  was  no  negligence  or  fault  or  want  of  care  of  any 
kind  on  his  part,  and  be  legally  excused  for  it.  But  this  case  was  far 
from  one  of  that  kind.  Here  it  was  a  criminal  heedlessness  on  the 
part  of  both  of  the  respondents  to  do  what  was  done  by  them.  The 
Massachusetts  cases  cited  by  the  counsel  for  the  state,  go  much  further 
than  the  facts  of  this  case  require  us  to  go  in  the  same  direction,  to 
inculpate  the  respondents.  Besides  those  cases,  see  also  Common- 
wealth V.  Elwell,  2  Met.  190;  Commonwealth  v.  Farren,  9  Allen, 
489;  Commonwealth  v.  Goodman,  97  Mass.,  117;  Commonwealth  v. 
Emmons,  98  Mass.  6.  We  see  no  relief  for  the  respondents  except, 
if  the  facts  warrant  it,  through  executive  interposition. 

Exceptions  overruled.^ 

1  See  U.  S.  V.  Anthony,  11  Blatch.  200;  U.  S.  v.  Taintor,  11  Blatch.  374;  U.  S.  u 
Adams,  2  Dak.  305.  —  Ed. 


878  THE   BRIG    WILLIAM    GRAY.  [CHAP.  V. 


SECTION  VI. 

Impossibility. 


REGINA  V.  BAMBER. 
Queen's  Bench.     1843. 

[Reported  5  Queen's  Bench,  279.] 

Lord  Denman,  C.  J.*  I  think  the  defendant  below  is  entitled  to 
judgment.  Both  the  road  which  the  defendant  is  charged  with  liability 
to  repair  and  the  land  over  which  it  passes  are  washed  away  by  the 
sea.  To  restore  the  road,  as  he  is  required  to  do,  he  must  create  a 
part  of  the  earth  anew.  I  do  not  rely  much  upon  the  argument  that 
the  ancient  line  of  highwa}'  has  been  removed.  But  here  all  the  mate- 
rials of  which  a  road  could  be  made  have  been  swept  away  by  the  act ' 
of  God.  Under  those  circumstances  can  the  defendant  be  liable  for 
not  repairing  the  road?  We  want  an  authority  for  such  a  proposition, 
and  none  has  been  found. 


THE   BRIG   WILLIAM  GRAY. 

Circuit  Court  of  the  United  States.     1810. 
[Reported  1  Paine,  16.] 

Livingston,  J.  In  defence  of  the  libel  filed  against  this  vessel  for 
proceeding  from  the  United  States  to  the  island  of  Antigua,  contrary 
to  the  act  laying  an  embargo,  and  the  first  act  in  addition  thereto,  the 
claimant  alleges  that  while  on  a  voyage  from  Alexandria  to  Boston, 
she  was  driven  b}'  storms,  tempests,  stress  of  weather,  and  necessity', 
out  of  her  course,  and  forced  to  proceed  to  that  island  for  her  own 
preservation  and  that  of  the  cargo,  and  of  the  lives  of  the  persons  on 
board. 

Both  the  fact  and  the  legal  consequences  deduced  from  it  by  the 
appellant  are  denied  by  the  counsel  for  the  United  States. 

In  looking  at  the  testimony,  it  cannot  be  denied  that  there  is  every 
reason  to  believe  that  the  real  destination  of  the  William  Gray  was 
Boston.  Two  witnesses  swear  to  this  fact  positively,  and  she  had  actu- 
ally arrived  at  Martha's  Vineyard  on  that  voyage.  Wh}^  it  was  not 
completed  is  very  minutely  accounted  for.     An  attempt  was  made  to 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.  VI.]  THE    ]!KI(;    WILLIAM    GRAY.  379 

Teach  Boston,  but  the  inclemency  of  the  season,  the  frozen  and  muti- 
lated condition  of  several  of  the  hands,  and  the  wrecked  state  of  the 
brig,  are  assigned  as  reasons  for  not  being  able  to  effect  this  purpose. 
In  this  state  of  things  it  appears  to  have  been  unanimously  thought 
necessary  for  the  preservation  of  life,  and  on  the  advice  of  the  pilot,  to 
bear  away  for  the  West  Indies,  it  being  deemed  impossible  to  return 
to  any  port  on  the  continent  of  America.  What  the  pilot  advised  to  be 
done  is  a  matter  of  fact,  and  may  be  proved  as  such  by  any  witness. 
Such  advice  or  conduct  on  his  part  cannot  be  classed,  as  has  been  done, 
with  hearsay  testimony.  To  tliis  body  of  evidence  the  Court  is  desired 
to  oppose  its  own  opinion  as  to  the  practicability  of  arriving  at  some 
one  or  other  port  within  the  United  States.  It  is  certain  that  a  story 
may  be  so  very  improbable  that  although  attested  to  by  more  than  one 
credible  witness,  no  one  would  be  bound  to  believe  it.  But  this  is  not 
of  that  description,  although  it  does  appear  to  the  Court  somewhat 
extraordinary  that  a  vessel  so  near  the  continent,  and  in  so  high  a  lati- 
tude, should  not  be  able  to  make  some  part  of  it;  yet,  for  aught  it  can 
know  to  the  contrar3-,  vessels  quite  as  near,  if  not  nearer,  may  have 
been  blown  off  in  the  winter  season,  especially  if  in  a  shattered  order, 
to  the  West  Indies.  It  would,  therefore,  be  unpardonable  in  either  a 
jury  or  a  Court,  merely  because  a  fact  appears  somewhat  improbable, 
to  disregard  the  evidence  establishing  it,  and  to  decide  in  conformity 
with  its  own  opinion,  unassisted  by  that  of  professional  men,  in  the  face 
of  all  the  proofs  in  the  cause. 

In  the  judgment  of  this  Court,  then,  the  alleged  necessity  is  suffi- 
ciently made  out.  Whether  it  takes  the  case  out  of  the  statute  is  next 
to  be  considered.  Were  this  res  Integra,  the  very  able  argument  on 
behalf  of  the  United  States  would  be  entitled  to  the  most  respectful 
consideration.  It  is  perhaps  to  be  lamented  that  judges  ever  permitted 
themselves  to  make  any  exceptions  to  an  act  which  the  legislature 
itself  had  not  thought  proper  to  incorporate  within  the  body  of  it.  The 
latitude  which  has  been  assumed  in  this  wa}'  has  very  much  added  to 
the  uncertainty  of  the  written  law  of  the  land,  and  produced  much  liti- 
gation, which  a  firm  adherence  to  its  letter  would  have  prevented.  But 
it  is  too  late  for  speculations  of  this  kind.  Their  only  use  can  be  to 
make  Courts  careful,  and  they  cannot  be  too  much  so,  never  to  depart, 
under  the  idea  of  preventing  a  particular  hardship,  from  the  plain  and 
obvious  meaning  of  the  legislature.  This  restriction,  which  every  judge 
should  impose  on  himself,  is  not  transcended  when,  in  the  interpreta- 
tion of  penal  statutes,  any  principle  is  applied  which  is  found  in  every 
code  of  laws,  divine  or  human,  and  has  from  time  immemorial  been 
ingrafted  into  the  common  law  of  the  countr3-,  from  which  our  jurispru- 
dence is  borrowed.  Where  such  rules  or  principles  exist  and  have 
invariably-  and  on  all  occasions  governed  Courts  in  the  administration  of 
criminal  justice,  the}-  become  as  much  a  part  of  the  law,  and  are  as 
obligatory  on  a  Court  as  the  statute  which  it  may  be  called  on  to  ex- 
pound.    Of  this  kind  is  the  one  of  which  the  appellants  now  claim  the 


380  COMMONWEALTH    V.    BROOKS.  [CHAP.   V. 

benefit;  that  the  concurrence  of  the  will  in  what  is  done,  where  it  has 
a  choice,  is  the  only  thing  that  renders  a  human  action  culpable,  or,  in 
other  words,  that  to  make  a  complete  offence  there  must  be  both  a  will 
and  an  act.  This  axiom,  as  it  ma}'  be  termed,  is  applied  as  well  to 
offences  created  by  statute  as  to  those  which  are  such  at  common  law. 
The  variety  of  cases  in  which  this  absence  of  will  excuses  those  who 
would  otherwise  be  offenders  have  been  mentioned  in  the  course  of  the 
argument,  and  among  them  we  find  that  on  which  this  defence  pro- 
ceeds, namely,  an  act  which  proceeds  from  compulsion  and  inevitable 
necessity.  Whether  the  legislature  might  not  by  apt  words  punish  an 
act  taking  place  under  such  circumstances  is  foreign  from  the  present 
inquiry  ;  but  where  this  is  not  done  in  terms,  they  are  supposed  to 
know  that,  by  the  rules  of  the  common  law,  it  is  always  considered  as 
excepted,  and  therefore  do  not  make  the  exception  themselves.  The 
cases  which  have  been  produced  b}'  the  appellant  are  as  strong  and 
conclusive  as  perhaps  were  ever  submitted  to  a  Court  in  support  of  any 
proposition  of  law.  If  the  necessit}'  which  leaves  no  alternative  but 
the  violation  of  law  to  preserve  life  be  allowed  as  an  excuse  for  com- 
mitting what  would  otherwise  be  high  treason,  parricide,  murder,  or 
any  other  of  the  higher  crimes,  wh}'  should  it  not  render  venial  an 
offence  which  is  only  malicm  pt'oMbiti/m,  and  the  commission  of  which 
is  attended  with  no  personal  injury  to  another.  The  Court,  therefore, 
cannot  but  j'ield  to  the  weight  of  so  man}-  authorities,  especially,  too, 
when  every  decision  accords  with  reason,  common  sense,  and  the  feel- 
ings of  mankind,  which  are  universal  and  indelible. 

But  is  it  so  very  clear  that  the  law  itself  does  not  make  the  excep- 
tion ?  The  Court  is  inclined  to  think  that,  on  a  fair  comparison  of  the 
different  acts  with  each  other,  this  will  be  found  to  be  done.  The  leg- 
islature, by  some  of  the  provisions  of  the  enforcing  law,  as  it  is  called, 
certainly  appear  to  have  been  of  tlie  same  opinion. 

The  Court,  therefore,  thinks  that  the  necessity  which  is  proved  to 
have  existed  excused  the  part}'  from  all  guilt,  and  of  course  from  the 
forfeiture  which  is  sought ;  and  that  none  having  accrued,  it  is  not 
among  those  cases  which  are  referred  for  mitigation  to  the  Secretary  of 
the  Treasur}'. 

The  sentence  of  the  District  Court  must  accordingly  be  reversed. 


COMMONWEALTH   v.   BROOKS. 

Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Reported  99  Massachusetts,  434.] 

Complaint  for  the  violation  of  s.  34  of  an  ordinance  of  the  city  of 
Boston  relating  to  carriages,  which  section  is  printed  in  the  margin. 

1  "  No  owner,  driver,  or  other  person  having  the  care  or  ordering  of  any  chaise, 
carryall,  hackney  carriage,  truck,  cart,  waggon,  handcart,  sleigh,  sled,  handsled,  or  any 


SECT.  VI.]  COMMONWEALTH   V.   BROOKS.  381 

(Laws  and  Ordinances  of  Boston,  ed.  1863,  p.  106)  in  suffering  tlie 
defendant's  wagon  to  stop  in  South  Market  Street  in  Boston  more 
tlian  twenty  minutes.' 

Gray,  J.  It  is  very  clear  that  the  defendant  was  not  proved  to  have 
violated  the  city  ordinauce  on  which  he  was  prosecuted.  No  person 
transgresses  the  ordinauce,  who  does  not  voluntarily  suffer  his  vehicle 
to  stop  in  the  street  for  more  than  twenty  minutes.  The  defendant, 
iudeed,  drove  into  South  Market  Street  more  than  twenty  minutes 
before  four  o'clock,  and  intended  to  remain  in  that  street  until  four 
o'clock.  But  he  had  the  right  to  travel  in  the  street,  if  he  did  not  volun- 
tarily suffer  his  vehicle  to  stop  in  it  for  the  prohibited  period.  If  he 
had  arrived  on  his  stand  more  than  twenty  minutes  before  four  o'clock 
and  voluntarily  remained  there  with  his  wagon  until  that  hour,  or  if  he 
had  voluntarily  stopped  his  wagon  for  more  than  twenty  minutes  at 
any  other  place  in  the  street,  it  would  have  been  a  violation  of  the 
ordinauce.  So,  perhaps,  if  he  had  stopped  for  more  than  twenty 
minutes  in  all  in  two  places  near  each  other,  in  the  execution  of  one 
purpose.  But  it  is  unnecessary  in  this  case  to  consider  under  what 
circumstances  repeated  intermissions  of  travel,  or  time  spent  in  driving 
about  the  street  without  intention  of  moving  onward  towards  a  par- 
ticular destination,  might  be  treated  as  going  to  make  up  one  stopping, 
within  the  meaning  of  the  ordinauce  ;  for  it  appears  that  the  defend- 
ant, while  driving  his  wagon  through  the  street  towards  his  stand,  was 
delayed  by  the  crowding  of  other  vehicles  which  he  could  not  control 
for  five  or  six  minutes,  and  then  drove  on  and  occupied  his  stand.  He 
did  not  voluntarily  stop  at  all  before  arriving  at  his  stand  ;  he  did  not 
stop  on  his  stand  but  lifteen  minutes  before  four  o'clock  ;  and  after 
four  o'clock,  being  a  marketman,  engaged  in  bringing  vegetables  into 
the  city  and  selling  them  from  his  wagon  at  a  stand  occupied  by  him 
within  the  established  limits  of  the  market,  though  in  a  public  street, 
he  is  admitted  to  have  liad  a  right,  by  virtue  of  the  exception  in  the 
ordinance,  and  of  the  St.  of  1859,  e.  211,  to  be  and  remain  upon  his 
stand  with  his  wagon.  J^ew  trial  ordered. 

other  vehicle  whatsoever,  new  or  old,  finished  or  unfinished,  with  or  without  a  horse 
or  horses,  or  other  animal  or  auimals  harnessed  thereto,  shall  suffer  the  same  to  stop 
in  any  street,  square,  lane,  or  alley  of  this  city  more  than  five  minutes,  without  some 
proper  person  to  take  care  of  the  same,  or  more  than  twenty  minutes  in  any  case ;  and 
any  person  so  offending  shall  be  liable  to  a  fine  of  not  less  than  three,  nor  more  than 
twenty  dollars  for  each  offence.  But  this  section  shall  not  apply  to  the  carriages  of 
physicians  while  visiting  the  sick,  or  to  the  vehicles  of  market  and  provision  men,  who 
may  stand  with  the  same,  without  the  limits  of  Faneuil  Hall  Market,  until  eleven 
o'clock  in  the  forenoon,  at  such  places  in  tlie  city  as  the  board  of  aldermen  may  desig- 
nate, for  the  purpose  of  vending  provisions." 
1  The  evidence  is  omitted. 


382  EEGINA  V.  kp:ed.  [chap.  v. 


SECTION   VIL 

Custom. 

ANONYMOUS. 

Common  Pleas. 

[Reported  2  Leon.  12.] 

Manwood,  J.,  said:  When  I  was  servant  to  Sir  James  Hules, 
one  of  the  Justices  of  the  Common  Pleas,  one  of  his  servants  was 
robbed  at  Gads  Hill,  within  the  Hundred  of  Gravesend  in  Kent,  and  he 
sued  the  men  of  the  Hundred  upon  this  statute,^  and  it  seemed  hard  to 
the  inhabitants  there  that  they  should  answer  for  the  robberies  done  at 
Gads  Hill,  because  robberies  are  there  so  frequent  that  if  the}'  should 
answer  for  all  of  them,  that  the}'  should  be  utterly  undone.  And 
Harris^  Sergeant,  was  of  counsel  with  the  inhabitants  of  Gravesend, 
and  pleaded  for  them,  that  time  out  of  mind,  etc.,  felons  had  used  to 
rob  at  Gads  Hill,  and  so  prescribed,  and  afterwards  by  award  they 
were  charsfed. 


REGINA   V.   REED. 

Sussex  Assizes.     1871. 

[Reported  12  Cox  C.  C.  1.] 

The  indictment  stated  that  the  defendants  did  unlawfully  and  inde- 
cently expose  their  bodies  and  persons  naked  and  uncovei-ed  in  pres- 
ence of  divers  of  her  Majest3''s  subjects,  to  their  great  scandal,  and  to 
the  manifest  corruption  of  their  morals  ;  and,  second  count,  that  the 
defendants  on  a  certain  public  and  common  highwa}',  in  the  parish 
of  Appledown,  unlawfully  and  indecentlj' did  expose  their  bodies  and 
persons  naked  and  uncovered  in  the  presence  of  divers  subjects  then 
and  there  being,  and  within  sight  and  view  of  divers  others  passing  and 
repassing  in  the  highwa}',  to  the  common  nuisance  of  the  subjects  of 
the  Queen. 

The  defendants  pleaded  not  guilty. 

1  Statute  of  Winchester,  13  Edw.  1. 


SECT.  VII.]  EEGINA    V.    REED.  383 

Hawkins,  Q.  C,  and  Grantham,  for  the  prosecution. 
Willoughby  and  A.  L.  Smith,  for  the  defendants. 

Hawkins^  in  opening  the  case,  cited  Rex  v.  Crowden,  2  Camp. 
N.  P.  C.  89,  wliere  a  defendant  was  convicted  of  indecency  in  bathing 
at  Brighton  in  view  of  liouses  recently  erected.  Althongli  in  the  pres- 
ent case  it  was  not  alleged  that  the  bathing  was  within  view  of  the 
houses,  it  was  urged  that,  as  it  was  on  a  public  pathway,  it  was  the 
same  case  in  point  of  principle. 

It  appeared  that  the  bathing  took  place  in  the  sea,  at  a  spot  about 
two  miles  from  Chichester,  and  half  a  mile  from  the  nearest  dwelling- 
house,  at  the  mouth  of  the  Levant,  a  stream  flowing  from  Chichester, 
and  where  the  water  was  deeper  than  elsewhere  on  that  part  of  the  coast. 
The  bathing-place  was  on  a  public  footway  from  Chichester,  on  a  bank 
or  sea-wall  along  the  beach.  The  side  of  the  bank  next  to  the  sea,  as 
it  was  a  sea-wall,  was  not  accessible  as  a  place  for  dressing  and  un- 
dressing, and  so  the  bathers  dressed  and  undressed  on  the  land  side  of 
the  path.  Hence  they  passed  naked  to  and  from  the  sea  across  the 
path  ;  and  it  was  proved  that  as  many  as  eighteen  or  twenty  women 
passed  along  the  footpath  in  the  course  of  a  day,  and  that  sometimes 
they  had  to  turn  back  in  order  to  avoid  the  bathers.  The  bathing  took 
place,  not  merely  in  the  morning  and  evening,  but  in  the  afternoon,  at 
the  time  women  were  walking  along  the  path.  Moreover,  as  the  bank 
was  five  or  six  feet  high,  the  bathers,  when  on  the  path,  were  seen  at 
some  distance. 

It  was  proved  that  bathing  went  on  at  the  time  women  were  passing, 
and  that  sometimes  they  had  to  turn  back.  The  pathway  was,  it  was 
stated,  one  of  the  most  pleasant  walks  round  Chichester,  and  a  good 
deal  frequented  by  ladies,  especially  in  that  season  of  the  year  when 
bathing  went  on  ;  and  the  prosecutor,  Mr.  Stanford,  whose  house  was 
within  half  a  mile  of  the  bathing-place,  stated  that  the  bathers  could  be 
seen  from  some  of  the  windows  of  his  house  and  from  his  garden.  But 
it  did  not  appear  that  complaints  had  been  made  until  the  prosecutor 
purchased  the  house  about  two  years  ago,  and  it  also  appeared  that 
there  was  another  house  nearer  than  his,  and  that  the  inhabitants  did 
not  complain,  the  nearest  house  being  above  a  quarter  of  a  mile  from 
the  bathing-place.  Further,  it  appeared  that  for  more  than  half  a 
century  bathing  had  taken  place  there  without  any  complaint,  and  that 
there  had  not  been  on  the  part  of  any  of  the  defendants  any  exposure 
be^-ond  what  was  necessarily  incident  to  bathing.  Nevertheless,  it 
appeared  that  tlie  pathway  from  which  the  bathing  took  place  was  one 
of  the  most  pleasant  walks  in  the  neighborhood  of  Chichester,  and  that 
it  was  practically  closed  to  females  during  the  bathing  season,  which 
was,  of  course,  the  finest  portion  of  the  year. 

CoCKBURN,  C.  J.  If  the  place  where  the  bathing  went  on  was  a 
place  where  persons  could  not  bathe  without  indecent  exposure,  it  was 
a  place  where  bathing  ought  not  to  go  on.  Undoubtedly,  if  it  was  a 
place  where  people  rarely  passed,  and  where  there  was  no  necessity  for 


384  BANKUS   V.    STATE.  [CHAP.  V. 

passing  at  all,  it  would  be  a  material  element  in  the  case.  But  the 
mere  fact  that  bathing  could  not  go  on  in  the  place  without  exposure 
was  not  (enough  to  excuse  the  exposure,  and  was  rather  a  reason  why 
the  bathing  ought  not  to  go  on.  Upon  these  facts  it  was  quite  impos- 
sible that  the  defendants  could  resist  a  conviction  upon  this  indictment. 
There  was,  it  appeared,  a  public  footway  frequented  in  fine  weather  by 
the  inhabitants  of  Chichester,  and  which  must  be  taken  to  be  an  ancient 
and  accustomed  footway.  It  was  impossible  to  set  up  a  customary 
right  to  bathe  close  to  the  path  in  such  a  way  as  to  violate  public 
decency,  and  thus  to  be  inconsistent  with  the  use  of  the  footway  by  any 
of  the  Queen's  subjects,  especially  of  the  female  sex.  No  one  could 
suppose  that  respectable  women  could  frequent  the  footpath  where  men 
were  in  the  habit  of  bathing,  and  were  constantly  seen  in  a  state  of 
nudity.  It  was  clear,  therefore,  that  the  usage  so  to  bathe,  however 
long  it  might  have  existed,  could  not  be  upheld,  and  that  those  persons 
who  thus  exposed  themselves  upon  or  near  to  a  public  footway  were 
liable  to  be  indicted  for  indecency.  There  must,  if  the  prosecution  was 
vjressed,  be  a  verdict  of  guilty  upon  this  indictment,  unless  the  facts  as 
thus  siiown  in  evidence  could  be  altered. 

It  was  not  suggested  for  the  defence  that  the  facts  could  be  altered. 

JIaiclil/is,  for  the  prosecution,  stated  that  it  was  not  desired  to  press 
the  prosecution,  if  protection  for  the  future  could  be  secui'cd,  and  there- 
fjpon  it  was  agreed  between  the  parties  that  bathing  henceforth  should 
take  place  from  a  shed  to  be  erected  for  the  purpose,  and  on  this 
condition  the  jury  were  discharged.-^ 


BANKUS   V.   STATE. 
Supreme  Court  of  Indiana.     1853. 

[Reported  4  Ind.  114.] 

Perkins,  J.  Indictment  for  a  riot.  Jury  trial,  conviction,  motion 
for  a  new  trial  overruled,  and  judgment  against  the  defendants. 

The  bill  of  exceptions  in  the  case  states  the  substance  of  the  evidence 
given  as  follows:  "Jesse  Bankus,  Lewis  Simpson,  William  Woods, 
and  William  McShirely,  four  of  the  defendants,  were  on  trial,  and  three 
witnesses  were  examined  on  the  part  of  the  state  (one  of  whom  was 
engaged  in  the  alleged  riot  with  the  defendants),  whose  testimony 
tended  to  prove  that  on  a  certain  evening,  within  a  year  before  the 
finding  of  said  indictment,  at  the  county  of  Henry,  the  above-named 
defendants  were  at  a  certain  place  in  said  county,  called  Chicago, 
(there  being  no  evidence  to  prove  that  they  had  assembled  at  said  place 
by  previous  concert  or  arrangement,  for  any  purpose  whatever,  except 
the  facts  that  they  were  all  present  without  any  known  business,  and 

1  Ace.  Com.  V.  Perry,  139  Mass.  198 


SECT.  VII.]  BANKUS   V.   STATE.  385 

that  they  lived  in  different  parts  of  the  neighborhood)  ;  that  there  had 
been  an  infair  at  the  house  of  one  Jacob  Wise,  in  said  Chicago,  whose 
house  was  situated  on  or  near  the  public  highway  ;  that  the  defendants, 
with  one  exception,  were  young  men,  one  of  whom  went  to  a  neighbor- 
ing house  and  borrowed  a  horn,  with  which  they  marched  back  and 
forth  along  the  highway,  sometimes  blowing  said  horn  and  sin<yinf 
songs,  but  not  vulgar  ones,  before  the  house  of  said  Wise,  and  north 
and  south  of  it,  and  hallooed  so  that  they  could  be  heard  near  a  mile 
distant,  as  certain  persons,  not  witnesses,  had  informed  said  Wise ;  and 
that  they  continued  on  the  ground,  thus  acting,  till  one  or  two  o'clock 
in  the  morning.  But  said  witnesses  all  concurred  in  stating  that  the 
defendants  were  all  in  good  humor,  and  used  no  violence  further  than 
above  set  forth  ;  tliat  tliej-  had  no  guns  or  weapons  of  any  kind,  made 
no  threats  or  attempts  at  force  of  any  kind  ;  that  the  witnesses  were 
not  in  the  least  alarmed,  and  feared  no  danger  of  any  kind,  and  were  in 
no  way  disturbed,  except  that  Jacob  Wise  stated  that  he  went  to  bed 
about  nine  o'clock,  and  was  awakened  occasionally  by  the  hallooing  in 
the  Yoad,  and  that  a  pedler,  who  put  up  at  the  house  of  said  Wise  that 
night  (it  being  a  public  house),  inquired  if  there  were  a  lock  and  key 
to  the  stable  in  which  his  horses  were  kept;  and  that  said  Wise,  at  the 
instance  of  said  pedler,  locked  the  stable  ; "  which  was  all  the  testimon}- 
given  in  the  cause. 

The  question  is,  whether,  upon  the  foregoing  evidence,  the  jury  were 
authorized  to  find  the  defendants  guilty  of  a  riot. 

The  R.  S.  of  1843  enact,  p.  973,  that  "  if  three  or  more  persons  shall 
actually  do  an  unlawful  act  of  violence,  either  with  or  without  a  common 
cause  or  quarrel,  or  even  do  a  lawful  act  in  a  violent  and  tumultuous 
manner,  they  shall  be  deemed  guilty  of  a  riot."  The  R.  S.  of  1852, 
vol.  2,  p.  425,  thus  define  a  riot:  "  If  three  or  more  persons  shall  do 
an  act  in  a  violent  and  tumultuous  manner,  they  shall  be  deemed  guilty 
of  a  riot." 

A  great  noise  in  the  night-time,  made  by  the  human  voice  or  by 
blowing  a  trumpet,  is  a  nuisance  to  those  near  whom  it  is  made.  The 
making  of  such  a  noise,  therefore,  in  the  vicinity  of  inhabitants,  is  an 
unlawful  act;  and,  if  made  by  three  or  more  persons  in  concert,  is,  b^-- 
the  statute  of  1843,  a  riot.  All  these  facts  exist  in  the  present  case. 
Here  was  a  great  noise,  heard  a  mile,  in  the  night-time,  made  with 
human  voices  and  a  trumpet,  in  the  vicinity  of  inhabitants.  The  re- 
quirements of  the  statute  for  the  making  out  of  the  offence  are  filled. 
The  noise  was  also  made  tumultuously.  The  act  itself  involves  tumul- 
tuousness  of  manner  in  its  performance.  But  it  is  said,  here  was  no 
alarm  or  fear.  The  statute  defining  the  offence  says  nothing  about 
alarm  or  fear.  In  this  case,  however,  it  was  only  the  witnesses  who 
were  not  alarmed.  Others  within  the  distance  of  the  mile  in  which  the 
noise  was  heard,  and  who  were  not  present  to  observe  the  actual  con- 
dition of  things,  may  have  been,  and  doubtless  were,  alarmed ;  and  the 
pedler  was  afraid  his  horses  would  be  stolen. 


386  VICK   V.   STATE.  [chap.  V. 

It  is  said  the  rioters  were  in  good  humor.  Very  likeh',  as  they  were 
permitted  to  carr}'  on  their  operations  without  interruption.  But  with 
what  motive  were  the}'  performing  these  good-humored  acts?  Not, 
certain!}',  for  the  gratification  of  Wise  and  his  family.  They  were  giv- 
ing them  what  is  called  a  charivari,  which  Webster  defines  and  explains 
as  follows  :  "  A  mock  serenade  of  discordant  music,  kettles,  tin-pans, 
etc.,  designed  to  annoy  and  insult.  It  was  at  first  directed  against 
widows  who  married  a  second  time,  at  an  advanced  age,  but  is  now 
extended  to  other  occasions  of  nocturnal  annoyance  and  insult." 

Again,  it  is  urged  that  these  defendants  were  but  acting  in  accord- 
ance with  the  custom  of  the  country.  But  a  custom  of  violating  the 
criminal  laws  will  not  exempt  such  violation  from  punishment.  In  the 
case  of  The  State  of  Pennsylvania  v.  Lewis,  et  al.,  Add.  R.  279,  it 
appeared  that  on  the  5th  of  November,  1795,  there  was  a  wedding  at 
the  house  of  one  John  Weston.  The  defendants  in  said  case  were 
there  without  invitation,  were  civilly  treated,  and,  in  the  evening,  when 
dancing  commenced,  began  a  disturbance  in  which,  during  the  evening, 
Weston  was  so  seriously  injured  that,  on  tlie  third  day  after,  he  died. 
Oil  the  trial  of  the  indictment  against  said  defendants,  Campbell,  Pen- 
tecost, and  Brackenridge,  in  their  argument,  said,  "These  men  did 
nothing  more  than  an  usual  frolic,  according  to  the  custom  and 
manners  of  this  country.  There  was  no  intention  of  hurt,  no  de- 
sign of  mischief,  in  which  the  malice,  which  is  a  necessary  ingredient  of 
murder,  consists."  But  the  argument  did  not  prevail;  and  the  Court 
said,  "  If  appearance  of  sport  will  exclude  the  presumption  of  malice, 
sport  will  always  be  afiected  to  cover  a  crime."  The  defendants  wero 
convicted  of  murder  in  the  second  degree. 

The  case  before  us  we  regard  as  a  plain,  but  not  an  aggravated, 
one  of  riot,  and  the  judgment  below  must  be  affirmed.  The  defendant« 
were  fined  but  three  dollars  each.     The  judgment  is  aflSrmed  with  costs 


VICK   V.   STATE. 
Court  of  Criminal  Appeals  of  Texas.     1902. 

[Reported  69  Soitthivestern  Rep.  156] 

Brooks,  J.-  Appellant  was  prosecuted  under  an  information  charging 
the  theft  of  a  load  of  wood.  Upon  conviction,  his  punishment  was 
assessed  at  a  fine  of  $5  and  one  hour's  confinement  in  the  count}' 
jail.  .  .  . 

Appellant  also  complains  that  the  court  erred  in  not  charging  the 
jury  as  to  the  custom  of  people  to  go  into  the  pastures  and  take  wood 
from  parties  owning  the  pastures.  There  is  no  law  authorizing  thieving 
by  custom.     This  testimony  was  not  admissible.   .  .  . 

The  judgment  is  affirmed. 

1  Onlj'  so  much  of  the  case  as  discusses  the  defence  of  custom  is  given.  —  Ed. 


SECT.  VII.]  HENDRY    V.    STATE.  387 

HENDRY  V.   STATE. 

Supreme  Court  of  Florida.     1897. 

[Reported  39  Ma.  235.] 

Mabry,  J.  The  plaintiff  in  error  was  indicted,  tried  and  convicted 
of  the  larceny  of  cows,  the  property  of  one  Adam  Mercer,  and  sentenced 
to  the  penitentiary  for  one  year.  Two  assignments  of  error  are  insisted 
on  for  a  reversal  of  the  judgment ;  the  first  being  the  rejection  of  cer- 
tain testimony  sought  to  be  elicited  by  plaintiff  in  error  from  the  wit- 
ness, Ziba  King,  and  the  second,  relating  to  the  sutliciency  of  the 
evidence  to  sustain  the  verdict. 

Ziba  King,  testifying  for  the  prosecution,  stated  that  he  ran  a 
butcher  shop  at  Punta  Gorda,  and  that  some  time  in  May,  1894, 
defendant  delivered  to  him  at  his  butcher  shop  in  DeSoto  county 
about  nineteen  head  of  cattle,  and  among  them  were  six  or  seven  in 
the  mark  and  brand  of  Adam  Mercer  ;  that  witness  knew  the  mark  and 
brand  of  Mercer,  and  defendant  stated  at  the  time  of  the  delivery  of  the 
cattle  that  he  was  authorized  to  sell  them.  Witness  bought  the  cattle 
from  defendant  and  paid  him  for  seventeen  head,  most  of  which  were 
butchered.  On  cross-examination  of  this  witness,  after  stating  that  he 
had  been  extensively  engaged  in  the  cattle  business  for  twenty-five 
years,  and  was  familiar  with  the  rules  and  customs  of  stock  men  in  De- 
Soto county,  the  following  question  was  propounded,  viz. :  You  have 
stated  that  you  have  been  extensively  engaged  in  the  cattle  business  in 
this  county  for  twenty-five  years,  and  that  you  are  familiar  with  the 
rules  and  customs  of  stock  men,  please  state  whether  or  not  it  has  been 
the  custom  among  cattle  owners  of  this  county,  during  the  time  you 
have  been  engaged  in  the  cattle  business,  to  drive  to  market  and  sell  the 
cattle  of  their  neighbors  where  they  were  on  friendly  terms  with  each 
other,  without  any  special  authority  for  so  doing,  and  with  the  under- 
standing that  they  would  be  paid  for  by  the  men  who  drove  them  such 
price  as  they  could  obtain  for  them  in  the  market,  with  or  without  a 
reasonable  compensation  for  driving  them?"  This  question  was  ob- 
jected to  by  the  State  Attorney  and  excluded  by  the  court,  and  we 
are  of  the  opinion  that  there  was  no  error  in  the  ruling.  The 
question  was  on  cross-examination  of  the  state's  first  witness,  and 
was  not  in  cross  of  any  testimony  brought  out  on  direct  examina- 
tion by  the  state,  but  the  objection  was  not  based  on  this  ground, 
and  it  may  be  said  to  have  been  waived.  The  charge  against  the 
defendant  was  for  the  larceny  of  the  animals  described  in  the  in- 
dictment, and  this  included  not  only  a  wrongful  taking  of  the  prop- 
erty of  another,  but  also  that  it  was  done  animo  furancU,  or  with  the 
intent  to  steal.  There  can,  of  course,  be  no  legal  custom  to  justify  one 
man  in  stealing  the  property  of  another,  as  such  a  custom  would  be 
bad  and  contrary  to  law.     Commonwealth  v.  Doane,  1  Gushing,  5.    We 


388  HENDRY   V.    STATE.  [CHAP.  V. 

do  not  understand  that  this  legale  proposition  is  questioned  by  counsel 
for  plaintiff  in  error,  but  it  is  insisted  that  the  custom  proposed  to  be 
shown,  if  it  existed,  was  proper  as  bearing  upon  the  intent  with  which 
the  accused  took  the  propert}-,  and  that  it  would  tend  to  show  he  did 
not  take  it  with  a  felouious  purpose.  It  had  not  been  shown  that  the 
accused  was  a  cattle  owner  residing  in  DeSoto  count}'  on  friendly 
terms  with  the  owner  of  the  cattle  alleged  to  have  been  stolen,  or  was 
in  an}'  way  entitled  to  avail  himself  of  the  custom  sought  to  be  shown. 
Subsequent  testimony  of  the  accused  himself  showed  that  he  was  not  a 
cattle  owner,  and  was  not  in  a  situation  to  avail  himself  of  such  a  cus- 
tom, if  it  did  exist.  If  it  had  been  shown,  or  offered  to  be  shown, 
that  tlie  accused  was  a  cattle  owner,  residing  in  DeSoto  count}',  on 
friendl}'  terms  with  the  owner  of  the  cattle  in  question,  and  that,  under 
such  a  custom  offered  to  be  shown,  he  had  driven  the  cattle  to  market 
and  had  sold  them,  but  with  the  intention  of  accounting  to  the  owner 
for  the  purchase  money,  we  do  not  intimate  that  the  evidence  of  such  a 
custom  would  be  improper.  It  might  become  pertinent  and  material 
in  such  a  case,  but  the  accused  in  the  present  case  was  not  shown  to  be 
a  stock  owner,  or  in  any  proper  way  connected  with  such  a  custom,  if 
it  existed,  and  there  was  no  error  in  rejecting  the  proposed  testimony. 
We  have  entertained  some  misgivings  as  to  the  sufficienc}'  of  the 
evidence  to  sustain  the  verdict,  but  after  a  careful  examination  have 
concluded  that  it  is  of  such  a  nature,  when  viewed  in  an  unfavorable 
light  against  the  accused,  as  to  sustain  the  conviction.  The  credi- 
bility of  witnesses,  in  case  of  conflict,  we  leave  to  the  settlement  of 
the  jar}- ;  nor  can  we  say  how  much  credence  must  be  given  to  the 
evidence  of  the  accused  where  there  is  conflict  or  improbability  of 
statement.  It  is  true,  as  contended  by  counsel  for  plaintiff  in  error, 
that  to  constitute  larceny,  the  taking  must  be  with  a  felonious  intent 
at  the  time,  and  whether  such  intent  existed  is  a  question  of  fact  to  be 
determined  by  the  jury  from  all  the  facts  of  the  case.  The  testimony 
before  us  shows  beyond  dispute  that  the  accused  gathered  the  cattle  of 
Adam  Mercer  and  drove  them  some  thirty  miles  to  a  market  and  sold 
them  for  money  which  he  never  accounted  to  the  owner  for,  or  offered 
to  make  any  account,  and  under  all  the  facts  of  the  case  we  are  of  the 
opinion  that  the  question  of  whether  the  accused  took  the  cattle  with 
felonious  purpose  of  converting  them  to  his  own  use  and  profit,  was 
proper  for  the  jury  to  settle,  and  as  they  determined  it  adversely 
to  him,  the  judgment  will  be  affirmed. 


SECT.  I.]  REX    V.   RICHARDSON.  389 

CBAPTER  VI. 
PARTIES   IN   CRIME. 


SECTION   I. 

Wlio  are  Parties. 

ANONYMOUS. 

Old  Bailey.     1723. 
[Reported  8  Mod.  165.] 

At  the  sessions  in  the  Old  Bailey  held  there  on  the  ninth  da}'  of 
April,  in  the  ninth  year  of  George  the  First,  where  some  of  the  judges 
of  the  Common  Pleas  were  present,  this  case  happened : 

Two  men  were  beating  another  man  in  the  street  in  the  night-time. 
A  stranger  passing  by  at  the  same  time  said,  "  I  am  ashamed  to  see  two 
men  beat  one."  Thereupon  one  of  those  who  was  beating  the  other  ran 
to  the  stranger  in  a  furious  manner,  and  with  a  knife  which  he  held  in  his 
right  hand,  gave  him  a  deep  wound,  of  which  he  died  soon  after.  And 
now  both  the  others  were  indicted  as  principals  for  the  said  murder. 

But  the  Judges  were  of  opinion  that,  because  it  did  not  appear  that 
one  of  them  intended  any  injury  to  the  person  killed,  he  could  not  be 
guilty  of  his  death,  either  as  principal  or  accessory.  It  is  true,  they 
were  both  doing  an  unlawful  act,  but  the  death  of  the  party  did  not 
ensue  upon  that  act. 


REX   V.    RICHARDSON. 
Old  Bailey.     1785. 

[Reported  Leach  {4th  ed.)  387.] 

At  the  Old  Baile}',  in  June  Session  1785,  Daniel  Richardson  and 
Samuel  Greenow  were  indicted  before  Mr.  Justice  Bullee  for  a  high- 
way robbery  on  John  Billings. 

It  appeared  in  evidence  that  the  two  prisoners  accosted  the  prose- 
cutor as  he  was  walking  along  the  street,  by  asking  him  in  a  peremp- 
tory manner  what  money  he  had  in  his  pocket ;  that  upon  his  replying 
that  he  had  only  two-pence  half-penny  one  of  the  prisoners  immedi- 
ately said  to  the  other,  "  If  he  really  has  no  more  do  not  take  that," 
and  turned  as  if  with  an  intention  to  go  away ;  but  the  other  prisoner 
stopped  the  prosecutor,  and  robbed  him  of  the  two-pence  half-penny, 
which  was  all  the  money  he  had  about  him.  But  the  prosecutor  could 
not  ascertain  which  of  them  it  was  that  had  used  this  expression,  nor 
which  of  them  had  taken  the  half-pence  from  his  pocket. 


390  KEGINA   V.    SWINDA.LL.  [CHAP.  VI. 

The  Court.  The  point  of  law  goes  to  the  acquittal  of  both  the 
prisoners  ;  for  if  two  men  assault  another  with  intent  to  rob  him,  and 
one  of  them,  before  any  demand  of  mone}-,  or  offer  to  take  it  be  made, 
repent  of  what  he  is  doing,  and  desist  from  the  prosecution  of  such 
intent,  he  cannot  be  involved  in  the  guilt  of  his  companion  who  after- 
wards takes  the  money  ;  for  he  changed  his  evil  intention  before  the 
act  which  completes  the  offence  was  committed.  That  prisoner  there- 
fore, whichever  of  the  two  it  was  who  thus  desisted,  cannot  be  guilty 
of  the  present  charge;  and  the  prosecutor  cannot  ascertain  who  it  was 
that  took  the  propert}'.  One  of  them  is  certainly  guilt}',  but  which  of 
them  personally  does  not  appear.  It  is  like  the  Ipswich  Case,  where 
five  men  were  indicted  for  murder ;  and  it  appeared,  on  a  special  ver- 
dict, that  it  was  murder  in  one,  but  not  in  the  other  four  ;  but  it  did 
not  appear  which  of  the  five  had  given  the  blow  which  caused  the 
death,  and  the  court  thereupon  said  that,  as  the  man  could  not  be 
clearly  and  positively  ascertained,  all  of  them  must  be  discharged. 

The  two  prisoners  were  accordinglj-  acquitted.^ 


KEGINA  V.    S  WIND  ALL. 

Stafford  Assizes.     1846. 

[/Reported  2  Cairingtoii  j^-  Kirwan,  230.] 

Manslaughter.  —  The  prisoners  were  indicted  for  the  manslaughtei 
of  one  James  Durose.  The  second  count  of  the  indictment  charged 
the  prisoners  with  inciting  each  other  to  drive  their  carts  and  horses 
at  a  furious  and  dangerous  rate  along  a  public  road,  and  with  driving 
their  carts  and  horses  over  the  deceased  at  such  furious  and  dangerous 
rate,  and  thereby-  killing  him.  The  third  count  charged  Swindall  with 
driving  his  cart  over  the  deceased,  and  Osborne  with  being  present, 
aiding  and  assisting.  The  fourth  count  charged  Osborne  with  driving 
his  cart  over  the  deceased,  and  Swindall  with  being  present,  aiding 
and  assisting. 

Upon  the  evidence  it  appeared  that  the  prisoners  were  each  driving 
a  cart  and  horse,  on  the  evening  of  the  12th  of  August,  1845.  The 
first  time  they  were  seen  that  evening  was  at  Draycott  toll-gate,  two 
miles  and  a  half  from  the  place  where  the  deceased  was  run  over. 
Swindall  there  paid  the  toll,  not  only  for  that  night,  but  also  for 
having  passed  with  Osborne  through  the  same  gate  a  da}'  or  two 
before.  They  then  appeai'ed  to  be  intoxicated.  The  next  place  at 
which  they  were  seen  was  Tean  Bridge,  over  which  they  passed  at  a 
gallop,  the  one  cart  close  behind  the  other.  A  person  there  told  them 
to  mind  their  driving ;  this  was  990  yards  from  the  place  where  the 

1  Ace.  People  v.  Moody,  45  Cal.  289.  -  Ed. 


SECT.  I.]  REGINA   V.   SWINDALL.  391 

deceased  was  killed.  Tlie  next  place  where  the}'  were  seen  was  forty- 
seven  yards  beyond  the  place  where  the  deceased  was  killed.  The 
carts  were  then  going  at  a  quick  trot,  one  closely  following  the 
other.  At  a  turnpike-gate  a  quarter  of  a  mile  from  the  place  where 
the  deceased  was  killed,  Swindall,  who  appeared  all  along  to  have 
been  driving  the  first  cart,  told  the  toll-gate  keeper,  "  We  have  driven 
over  an  old  man,"  and  desired  him  to  bring  a  light  and  look  at  the 
name  on  the  cart ;  on  which  Osborne  pushed  on  his  cart,  and  told 
Swindall  to  hold  his  bother,  and  they  then  started  off  at  a  quick  pace. 
They  were  subsequently  seen  at  two  other  places,  at  one  of  which 
Swindall  said  he  had  sold  his  concern  to  Osborne.  It  appeared  that 
the  carts  were  loaded  with  pots  from  the  potteries.  The  surgeon 
proved  that  the  deceased  had  a  mark  upon  his  body  which  would  cor- 
respond with  the  wheel  of  a  cart,  and  also  several  other  bruises,  and, 
although  he  could  not  sa}'  that  both  carts  had  passed  over  his  body,  it 
was  possible  that  both  might  have  done  so. 

Greaves,  in  opening  the  case  to  the  jury,  had  submitted  that  it  was 
perfectly  immaterial  in  point  of  law,  whether  one  or  both  carts  had 
passed  over  the  deceased.  The  prisoners  were  in  compan}',  and  had 
concurred  in  jointly  driving  furiously  along  the  road  ;  that  that  was 
an  unlawful  act,  and,  as  both  had  joined  in  it,  each  was  responsible 
for  the  consequences,  though  they  might  arise  from  the  act  of  the 
other.  It  was  clear  that  they  were  either  partners,  master  and  ser- 
vant, or  at  all  events  companions.  If  the}^  had  been  in  the  same  cart, 
one  holding  the  reins,  the  other  the  whip,  it  could  not  be  doubted  that 
they  would  be  both  liable  for  the  consequences  ;  and  in  effect  the  case 
was  the  same,  for  each  was  driving  his  own  horse  at  a  furious  pace, 
and  encouraging  the  other  to  do  the  like. 

At  the  close  of  the  evidence  for  the  prosecution,  Allen,  Serjt.,  for 
the  prisoners,  submitted  that  the  evidence  only  proved  that  one  of 
the  prisoners  had  run  over  the  deceased,  and  that  the  other  was  en- 
titled to  be  acquitted. 

Pollock,  C  B.  I  think  that  that  is  not  so.  I  think  that  Mr. 
Greaves  is  right  in  his  law.  If  two  persons  are  in  this  way  inciting 
each  other  to  do  an  unlawful  act,  and  one  of  them  runs  over  a  man, 
whether  he  be  the  first  or  the  last  he  is  equally  liable  :  the  person  who 
runs  over  the  man  would  be  a  principal  in  the  first  degree,  and  the 
other  a  principal  in  the  second  degree. 

Allen,  Serjt.  The  prosecutor,  at  all  events,  is  bound  to  elect  upon 
which  count  he  will  proceed. 

Pollock,  C.  B.  That  is  not  so.  I  very  well  recollect  that  in 
Regina  v.  Goode  there  were  many  modes  of  death  specified,  and  that 
It  was  also  alleged  that  the  deceased  was  killed  by  certain  means  to 
the  jurors  unknown.  When  there  is  no  evidence  applicable  to  a  par- 
ticular count,  that  count  must  be  abandoned  ;  but  if  there  is  evidence 
to  support  a  count,  it  must  be  submitted  to  the  jury.  In  this  case  the 
evidence  goes  to  support  all  the  counts. 


392  KEGINA   V.  SWINDALL.  [CHAP.  VI. 

Allen,  Serjt,  addressed  the  juiT  for  the  prisoners. 

Pollock,  C.  B.,  in  summing  up.  The  prisoners  are  charged  with 
contributing  to  the  death  of  the  deceased  by  tlieir  negligence  and 
improper  conduct,  and,  if  the}'  did  so,  it  matters  not  whether  he  was 
deaf,  or  drunk,  or  negligent,  or  in  part  contributed  to  his  own  death  ; 
for  in  this  consists  a  great  distinction  between  civil  and  criminal  pro- 
ceedings. If  two  coaches  run  against  each  other,  and  the  drivers  of 
both  are  to  blame,  neither  of  them  has  any  remedy  against  the  other 
for  damages.  So,  in  order  that  one  ship-owner  may  recover  against 
another  for  any  damage  done,  he  must  be  free  from  blame  ;  he  cannot 
recover  from  the  other  if  he  has  contributed  to  his  own  injury,  however 
slight  the  contribution  may  be.  But  in  the  case  of  loss  of  life  the 
law  takes  a  totally  different  view,  —  the  converse  of  that  proposition  is 
true ;  for  there  each  part}-  is  responsible  for  any  blame  that  may 
ensue,  however  large  the  share  may  be  ;  and  so  highly  does  the  law 
value  human  life  that  it  admits  of  no  justification  wherever  life  has 
been  lost,  and  the  carelessness  or  negligence  of  an}'  one  person  has 
contributed  to  the  death  of  another  person.  Generally,  it  may  be  laid 
down  that  where  one  by  his  negligence  has  contributed  to  the  death 
of  another  he  is  responsible  ;  therefore,  you  are  to  say,  by  your  ver- 
dict, whether  you  are  of  opinion  that  the  deceased  came  to  his  death 
in  consequence  of  the  negligence  of  one  or  both  of  the  prisoners. 
A  distinction  has  been  taken  between  the  prisoners  :  it  is  said  that 
the  one  who  went  first  is  responsible,  but  that  the  second  is  not. 
If  it  is  necessary  that  both  should  have  run  over  the  deceased,  the 
case  is  not  without  evidence  that  both  did  so.  But  it  appears  to 
me  that  the  law,  as  stated  by  Mr.  Greaves,  is  perfectly  correct. 
Where  two  coaches,  totally  independent  of  each  other,  are  proceeding  in 
the  ordinary  way  along  a  road,  one  after  the  other,  and  the  driver  of  the 
first  is  guilty  of  negligence,  the  driver  of  the  second,  who  had  not  the 
same  means  of  pulling  up,  may  not  be  responsible.  But  when  two 
persons  are  driving  together,  encouraging  each  other  to  drive  at  a 
dangerous  pace,  then,  whether  the  injury  is  done  by  the  one  driving 
the  first  or  the  second  carriage,  I  am  of  opinion  that  in  point  of 
law  the  other  shares  the  guilt.-^ 

Verdict,  Guilty. 

Greaves  and  K^ynnersley ,  for  the  prosecution. 

Allen,  Serjt.,  and  G.  H.  Whcdley,  for  the  prisoners. 

1  See  Reg.  v.  Salmon,  14  Cox  C.  C.  494.  —  ElX 


SECT.  I.]  REGINA   V.   CONET.  393 

EEGINA  V.    CONEY. 
Court  for  Crown  Cases  Reserved.     1882. 

[Reported  8  Q.  D.  D.  534.] 

Cave,  J.^  In  this  case  I  am  of  opinion  that  the  direction  to  the  jury 
was  wrong,  and  consequent!}'  that  the  conviction  ought  not  to  stand. 

No  direction  to  a  jury  can,  in  my  opinion,  be  regarded  as  right  or 
wrong  witliout  reference  to  the  evidence  before  the  jury  ;  for  a  direc- 
tion which  is  sufficient  under  a  certain  state  of  facts  may  be  mislead- 
ing and  wrong  under  another  state  of  facts.  It  is  important,  therefore, 
first  to  see  what  the  offence  was  with  which  the  prisoners  were  charged 
and  what  was  the  evidence  against  them. 

The  prisoners  were  charged  in  one  count  with  a  common  assault  on 
one  Burke,  and  in  another  count  with  a  like  assault  on  one  Mitchell. 

The  evidence  was  that  on  the  16th  of  June  last,  at  the  close  of  Ascot 
races,  Burke  and  Mitchell  had  engaged  in  a  fight  near  the  road  from 
Ascot  to  Maidenhead  ;  that  a  ring  was  formed  with  posts  and  ropes  ; 
that  a  large  number  of  persons  were  present  looking  on,  some  of  whom 
were  undoubtedly  encouraging  the  fight ;  that  the  men  fought  for  some 
time  ;  and  that  the  three  prisoners  were  seen  in  the  crowd,  but  were  not 
seen  to  do  anything,  and  there  was  no  evidence  how  they  got  there  or 
how  long  they  stayed  there. 

The  chairman  of  quarter  sessions  directed  the  jury  in  the  words  of 
Russell  on  Crimes,  vol.  i.  p.  818  :  "  There  is  no  doubt  that  prize-fights 
are  illegal,  indeed  just  as  much  so  as  that  persons  should  go  out  to 
fight  with  deadly  weapons,  and  it  is  not  at  all  material  which  party 
strikes  the  first  blow,  and  all  persons  who  go  to  a  prize-fight  to  see  tlie 
combatants  strike  each  other,  and  who  are  present  when  they  do  so,  are, 
in  point  of  law,  guilty  of  an  assault."  And  the  chairman  added,  in 
the  words  of  Littledale,  J.,  in  Rex  v.  Murphy,  6  C  &  P.  103:  "If 
they  were  not  casually  passing  by,  but  stayed  at  the  place,  they 
encouraged  it  by  their  presence,  although  they  did  not  say  or  do 
anything." 

By  this  direction  I  gather  that  the  chairman  laid  down  as  matter  of  law, 
first,  that  the  aetuarfighters  in  a  prize-fight  are  guilty  of  an  assault ; 
and,  secondly,  that  if  any  person  is  shewn  to  have  been  present  in  the 
crowd  looking  on  at  the  fight,  that  is  not  merely  evidence,  but,  if  un- 
explained, conclusive  proof  that  he  was  aiding  and  abetting  the  assault. 
That  seems  to  be  the  natural  meaning  of  the  language  used,  and  that, 
from  the  finding  of  the  jury,  appears  to  me  to  be  the  sense  in  which 
they  understood  it.     They  found  a  verdict  of  guilty  against  five  of  the 

1  Concurring  opinions  were  delivered  by  Stephen,  Lopes,  North,  and  Haw- 
kins, JJ.,  HuDDLESTON,  B.,  Manisty  and  "Denman,  JJ.,  and  dissenting  opinions  by 
Mathew,  J.,  Pollock,  B.,  and  Lord  Coleridge,  C.  J. 


394  EEGINA  V.    CONEY.  [CHAP.  VI. 

prisoners  who,  I  presume,  were  proved  to  have  taken  some  active  part, 
or  to  have  been  there  for  the  purpose  of  encouraging  the  fight;  and  as 
to  tlie  three  prisoners  in  question,  they  found  that  they  were  guilty  of 
an  assault,  and  yet  that  they  were  not  aiding  and  abetting,  which  is  to 
my  mind  an  inconsistent  finding.  Indeed,  on  no  other  supposition  can 
I  understand  the  verdict,  for  the  evidence  against  the  three  prisoners, 
and  especially  against  Gilliam,  is  quite  consistent  with  their  being 
laborers  working  near  or  persons  going  quietly  home  from  the  races, 
who,  observing  a  crowd,  went  up  to  see  what  the  matter  was,  and 
finding  it  was  a  fight,  stayed  some  short  time  looking  on. 

For  the  defence  it  was  first  contended  that  inasmuch  as  Burke  and 
Mitchell  had  agreed  to  fight  there  was  no  assault.  I  am,  however,  of 
opinion  that  this  is  not  so.  With  regard  to  an  action  for  an  assault, 
in  the  case  of  Boulter  v.  Clarke,  Buller's  Nisi  Prius,  p.  16,  it  was  held 
by  Parkek,  C.  B.,  that  it  was  no  defence  to  allege  that  the  plaintiflf 
and  defendant  fought  together  by  consent,  the  fighting  itself  being 
unlawful,  and  in  Matthew  v.  OUerton,  Comb.  218,  it  was  held  that  if 
one  license  another  to  beat  him,  such  license  is  no  defence,  because  it 
is  against  the  peace.  So  with  regard  to  an  indictment  for  an  assault, 
Patteson,  J.,  in  Rex  v.  Perkins,  4  C.  &  P.  537,  speaking  of  a  prize- 
fight, says,  if  all  these  persons  went  out  to  see  these  men  strike  each 
other,  and  were  present  when  the}'  did  so,  the}'  are  all  in  point  of  law 
guilty  of  an  assault.  There  is  also  the  authorit}'  of  Coleridge,  J.,  in 
Reg.  V.  Lewis,  1  C.  &  K.  419,  who  sa3's  that  whenever  two  persons  go 
out  to  strike  each  other,  and  do  so,  each  is  guilty  of  an  assault. 

Reg.  V.  Orton,  39  L.  T.  293,  proves  nothing  against  this  view,  for  the 
most  that  can  be  said  of  that  case  is  that  this  point  did  not  arise  there. 
Christopherson  v.  Bare,  11  Q.  B.  473,  has  also  nothing  to  do  with  this 
point,  all  that  was  there  decided  being  that  a  plea  of  leave  and  license 
was  not  a  good  defence  to  an  action  for  an  assault,  on  the  ground  that 
if  that  is  a  defence,  it  arises  under  the  general  issue,  an  assault  b}'  leave 
and  license  being  a  contradiction  in  terms. 

The  true  view  is,  I  think,  that  a  blow  struck  in  anger,  or  which  is 
likeh'  or  is  intended  to  do  corporal  hurt,  is  an  assault,  but  that  a  blow 
struck  in  sport,  and  not  likely  nor  intended  to  cause  bodil}'  harm,  is 
not  an  assault,  and  that,  an  assault  being  a  breach  of  the  peace  and 
unlawful,  the  consent  of  the  person  struck  is  immaterial.  If  this  view 
is  correct,  a  blow  struck  in  a  prize-fight  is  clearly  an  assault ;  but  pla}'- 
ing  with  single-sticks  or  wrestling  do  not  involve  an  assault ;  nor  does 
boxing  with  gloves  in  the  ordinary  way,  and  not  with  the  ferocit}' 
and  severe  punishment  to  the  boxers  deposed  to  in  Reg.  r.  Orton,  39 
L.  T.  293. 

It  was  next  contended  that  the  chairman  was  wrong  in  directing  the 
jurj'  in  the  words  of  Littledale,  J.,  in  Rex  v.  Murph}',  6  C.  &  P.  103, 
that  if  the  prisoners  were  not  merely  casually  passing  by,  but  staved  at 
the  place,  they  encouraged  it  b\^  their  presence,  although  they  did  not 
say  or  do  an3'thing. 


SECT.  I.]  KEGINA   W.    CONEY.  395 

Now  it  is  a  general  rule  in  the  case  of  principals  in  the  second  degree 
that  there  must  be  participation  in  the  act,  ami  tliat,  altliough  a  roan  is 
present  whilst  a  felony  is  being  committed,  if  lie  talies  no  part  in  it,  and 
does  not  act  in  concert  with  those  who  commit  it,  he  will  not  be  a 
principal  in  the  second  degree  merely  because  he  does  not  endeavor 
to  prevent  the  felon}-,  or  apprehend  the  felon. 

In  1  Hale,  Pleas  of  the  Crown,  p.  439,  it  is  said  that  to  make  an 
abettor  to  a  murder  or  a  homicide  principal  to  a  felony  there  are  reo-u- 
larly  two  things  requisite;  1st,  he  must  be  present,  2d,  he  must  be 
aiding  and  abetting.  If,  says  Hale,  A.  and  B.  be  fighting  and  C,  a 
man  of  full  age,  comes  by  chance,  and  is  a  looker-on  only,  and  assists 
neither,  he  is  not  guilty  of  murder  or  homicide  as  principal  la  the 
second  degree. 

So  again  in  Foster's  Crown  Law,  p.  350,  it  is  said  that  "  in  order 
to  render  a  person  an  accomplice  and  a  principal  in  felony,  he  must  be 
aiding  and  abetting  at  the  fact,  or  ready  to  afford  assistance  if  neces- 
sary, and  therefore  if  A.  happeneth  to  be  present  at  a  murder,  for 
instance,  and  taketh  no  part  in  it,  nor  endeavoreth  to  prevent  it,  nor 
apprehendeth  the  murderer,  nor  levyeth  hue  and  cry  after  him,  this 
strange  behavior  of  his,  though  highly  criminal,  will  not  of  itself 
render  him  either  principal  or  accessory."  "I  would  be  here,"  he  con- 
tinues, "  understood  to  speak  of  that  kind  of  homicide,  amounting  in 
construction  of  law  to  murder,  which  is  usually  committed  openly  and 
before  witnesses,  for  in  the  case  of  assassinations  done  in  private,  to 
which  witnesses  who  are  not  partakers  in  the  guilt  are  very  rarely  ad- 
mitted, the  circumstances  I  have  mentioned  may  be  made  use  of  against 
A.,  as  evidence  of  consent  and  concun-ence  on  his  part ;  and  in  that 
light  should  be  left  to  the  jury,  if  he  be  put  upon  his  trial." 

This  seems  to  me  to  hit  the  point.  Where  presence  may  be  entirely 
accidental,  it  is  not  even  evidence  of  aiding  and  abetting.  Where 
presence  \s  prima  facie  not  accidental,  it  is  evidence,  but  no  more  than 
evidence,  for  the  jury. 

In  accordance  with  the  principles  here  laid  down,  Kelly,  C.  B.,  in 
Reg.  V.  Atkinson,  11  Cox,  330,  a  case  of  persons  who  were  indicted  foi 
a  serious  riot,  held,  that  the  mere  presence  of  a  person  among  the  riot 
ers,  even  though  he  possessed  the  power,  and  failed  to  exercise  it,  c) 
stopping  the  riot,  did  not  render  him  liable  on  such  a  charge,  and  that 
in  order  to  find  any  of  the  defendants  guilty,  the  jury  must  be  satisfied 
that  they  had  taken  part  in  an  assembly  for  an  unlawful  purpose,  and 
had  helped,  or  encouraged,  or  incited  the  others  in  the  prosecution  '^f 
that  purpose. 

In  Rex  V.  Borthwick,  1  Doug.  207,  it  is  laid  down  that  from  mere 
presence  the  court  cannot  intend  that  the  prisoner  was  aiding  and 
abetting. 

In  Rex  i\  Perkins,  4  C.  «fe  P.  537,  Perkins  and  three  others  were 
indicted  for  a  riot,  and  an  assault  on  Coates. 


396  REGINA    V.    CONEY.  [CHAP.  VI. 

It  appeared  that  a  prize-fight  was  fought  between  Perkins  and  Coates, 
and  that  of  the  other  three  defendants,  one  acted  as  Perkins's  second, 
another  collected  mone}'  for  the  combatants,  Avhile  the  third  walked 
round  the  ring  and  kept  the  people  back.  Mr.  Justice  Patteson  said, 
"  It  is  proved  that  all  the  defendants  were  assisting  in  this  breach 
of  the  peace,  and  there  is  no  doubt  that  persons  who  are  present  on 
such  an  occasion,  and  taking  an}-  part  in  the  matter,  are  equally  guilty 
as  principals.'"' 

The  foreman  of  the  jury  said  that  the}*  doubted  whether  they  could 
find  all  the  defendants  guilty  of  an  assault,  whereupon  Mr.  Justice 
Patteson  said,  "  If  all  these  persons  went  out  to  see  these  men  strike 
each  other,  and  were  present  when  the}'  did,  they  are  all  in  point  of  law 
guiltv  of  an  assault.  There  is  no  distinction  between  those  who  concur 
in  the  act  and  those  who  fight."  Whereupon  the  jury  convicted  the 
men  of  the  riot,  but  acquitted  them  of  the  assault. 

In  that  case  there  was  ample  evidence  that  the  accused  were  guilty 
of  the  assault,  and  the  case  did  not  require  Patteson,  J.,  to  lay  down, 
nor  do  I  understand  him  as  having  laid  down,  that  a  mere  on-looker  is 
ipso  facto  guilty  of  an  assault.  On  the  contrary,  I  understand  him  to 
say,  that  to  be  guilty,  they  must  not  only  be  present,  but  must  be 
*'  taking  part  in  the  matter,"  as  he  expresses  it  in  the  one  passage, 
or,   "concurring  in  the  act,"  as  he  expresses  it  in  the  other. 

In  Reg.  V.  Young,  8  C.  &  P.  644,  the  prisoners  were  indicted  for  the 
murder  of  Mirfin,  who  was  killed  in  a  duel  by  one  Eliot.  In  summing 
up,  Vaughan,  J.,  said,  ''There  is  no  difficulty  as  to  the  law  upon  this 
subject.  Principals  in  the  first  degree  are  those  by  whom  the  death 
wound  is  inflicted.  Principals  in  the  second  degree  those  who  are 
present  at  the  time  it  is  given,  aiding  and  abetting,  comforting  and 
assisting  the  persons  actually  engaged  in  the  contest  —  mere  presence 
alone  will  not  be  sufficient  to  make  a  party  an  aider  and  abettor,  but  it 
is  essential  that  he  should  by  his  countenance  and  conduct  in  the  pro 
ceeding,  being  present,  aid  and  assist  the  principals.  If  either  of  the 
prisoners  sustained  the  principal  by  his  advice  or  presence,  or  if  you 
think  he  went  down  for  the  purpose  of  encouraging  and  forwarding 
the  unlawful  conflict,  although  he  did  not  do  or  say  anything,  yet,  if 
he  was  present  and  was  assisting  and  encouraging  when  the  pistol  was 
fired,  he  will  be  guilty  of  the  offence  imputed  by  the  indictment."  In 
that  direction  I  entirely  concur,  but  I  believe  if  a  similar  direction 
had  been  given  in  the  present  case,  the  prisoners  would  have  been 
acquitted. 

In  Reg.  V.  Cuddy,  1  C.  &  K.  210,  the  prisoner  was  charged  with  aid- 
ing and  abetting  Munro  in  the  murder  of  Colonel  Fawcett,  whom  Munro 
had  shot  in  a  duel.  AVilliams,  J.,  in  directing  the  jury  in  the  presence 
of  RoLFE,  B.,  said,  "  When  two  persons  go  out  to  fight  a  deliberate 
duel,  and  death  ensues,  all  persons  who  are  present  on  that  occasion, 
encouraging  or  promoting  that  death,  will  be  guilty  of  abetting  the 
principal  offender." 


SECT.  I.]  REGINA   V.   CONEY.  397 

So  far  the  decisions  are  uniform.  Tliere  are,  however,  two  which 
ma}'  seem  to  favor  a  different  view  of  the  law. 

In  Rex  V.  Bellingham,  2  C.  &  P.  234,  Bellingham  and  Savage  had 
agreed  to  fight,  and  about  1000  persons  were  assembled  to  witness  it. 
Mr.  Rogers,  a  police  magistrate,  being  applied  to  to  prevent  it,  went 
to  the  place  and  told  them  they  should  not  fight.  Skinner  said  they 
should,  and  a  scuffle  ensued  between  him  and  Mr.  Rogers,  wliich  ended 
in  a  general  tumult  on  the  part  of  the  mob,  and  the  rescue  of  Skinner. 
Bellingiiam,  Savage,  and  Skinner  were  indicted  for  a  riot,  and  for  assault- 
ing Mr.  Rogers,  and  were  convicted.  In  the  course  of  his  summing-up, 
BuRROUGH,  J.,  said,  "  By  law,  whatever  is  done  in  such  an  assembly 
by  one,  all  present  are  equally  liable.  These  fights  are  unlawful  as- 
semblies, and  every  one  going  to  them  is  guilty  of  an  offence."  These 
obiter  dicta  appear  to  me  to  be  no  justification  for  the  ruling  of  the 
chairman  in  the  present  case.  Bukrough,  J.,  could  not  have  intended 
to  say  that  all  who  were  present  for  the  purpose  of  seeing  the  fight 
were  'q^f^o  facto  liable  for  the  riot  and  assault  upon  the  magistrate 
which  arose  incidentally  out  of  his  trying  to  prevent  the  fight,  and,  if 
he  did  not  mean  tliat,  his  remarks  had  no  relation  to  the  oflfence  then 
being  tried,  and  were  merely  in  the  nature  of  a  caution.  Moreover, 
taking  the  whole  together,  Burrough,  J.,  seems  to  have  referred  to 
people  going  to  prize-fights  for  the  purpose  of  encouraging  them,  and 
not  to  mere  on-lookers. 

In  Rex  r.  INIurphy,  6  C.  &  P.  103,  the  prisoner  was  indicted  for  the 
murder  of  one  Thompson.  It  was  proved  for  the  prosecution  that  there 
was  a  figlit  between  Micliael  Murphy  and  the  deceased,  who  died  in 
consequence  of  the  blows  he  received,  and  that  the  prisoner  acted  a9 
one  of  the  seconds.  For  the  defence  witnesses  were  called  to  shew 
that  though  the  prisoner  was  present,  he  did  not  act  as  second,  and 
that  he  did  nothing,  and  did  not  even  say  anything.  Mr.  Justice 
LiTTLEDALE  told  the  jury  that  if  the  prisoner  was  at  the  fight  encourag- 
ing it  by  his  presence,  he  was  guilty  of  manslaughter,  althougli  he  took 
no  active  part  in  it,  and,  on  his  attention  being  drawn  to  the  evidence 
for  tlie  defence,  his  Lordship  said,  "  I  am  of  opinion  that  persons  who 
are  at  a  fight,  in  consequence  of  wliich  death  ensues,  are  all  guilty  of 
manslaughter  if  they  encouraged  it  by  their  presence  —  I  mean,  if  they 
remained  present  during  the  fight.  I  say  that  if  they  were  not  casually 
passing  by,  but  stayed  at  the  place,  they  encouraged  it  by  their  pres- 
ence, although  they  did  not  say  or  do  anything.  If  the  death  occurred 
from  the  figlit,  all  persons  encouraging  it  by  their  presence  are  guilty 
of  manslaughter." 

This  summing-up  unfortunately  appears  to  me  capable  of  being 
understood  in  two  different  ways.  It  may  mean  either  that  mere  pres- 
ence unexplained  is  evidence  of  encouragement,  and  so  of  guilt,  or  that 
mere  presence  unexplained  is  conclusive  proof  of  encouragement,  and 
so  of  guilt.     If  the  former  is  the  correr\  »veaning,  I  concur  in  the  law 


398  COMMONWEALTH    V.    HADLEY.  [CHAP.  VI. 

SO  laid  down;  if  the  latter,  I  ara  unable  to  do  so.  It  appears  to  me 
that  the  passage  tending  to  convey-  the  latter  view  is  tliat  which  was 
read  b}'  the  chairman  in  tliis  case  to  the  jury,  and  I  cannot  help  think- 
ing that  the  chairman  believed  himself,  and  meant  to  direct  tlie  jiny, 
and  at  any  rate  I  feel  satisfied  that  the  jury  understood  him  to  mean, 
that  mere  presence  unexplained  was  conclusive  proof  of  encouragement 
and  so  of  guilt ;  and  it  is  on  this  ground  I  hold  that  this  conviction 
ought  not  to  stand. 


COMMONWEALTH  v.  HADLEY. 

Supreme  Judicial  Court  of  Massachusetts.     1846. 

[Reported  11  Metcalf,  66.] 

Shaw,  C.  J.  The  present  case,  which  comes  before  the  Court  upon 
exceptions,  presents  a  question  of  great  importance  affecting  the  admin- 
istration of  the  license  laws  of  this  Commonwealth.  The  defendant 
w^as  indicted  upon  the  ss.  1  &  2  of  c.  47  of  the  Revised  Statutes,  and 
by  a  general  verdict  was  convicted  on  both.  Exceptions  were  taken  to 
the  directions  of  the  judge  before  whom  the  indictment  was  tried  in  the 
municipal  court.  It  appears  by  the  bill  of  exceptions  that  evidence 
was  introduced  in  support  of  the  indictment  tending  to  show  sales  of 
spirituous  liquors  to  be  used  in  a  certain  sliop,  which  sales  were  effected 
therein  by  the  defendant.  On  this  proof  the  public  prosecutor  relied  to 
prove  the  sale  by  the  defendant,  as  charged  in  tlie  indictment. 

The  bill  of  exceptions  then  states  that  "the  defendant  offered  evi- 
dence to  show  that  tlie  premises  in  which  the  sales  were  effected  were 
not  leased  to  him  ;  that  he  was  not  the  proprietor  nor  owner  thereof; 
that  he  was  merely  a  hired  agent,  having  no  interest  in  the  profits,  and 
acting  in  the  presence  and  under  the  control  of  his  employer  ;  and  he 
contended  that  to  support  the  indictment  the  government  must  show 
tliat  the  spirituous  liquor  was  to  be  used  in  his  house  or  other  building, 
and  that  if  tlie  defendant  was  a  mere  bartender  or  hired  agent  he  was 
not  liable  under  the  statute."  The  judge  declined  so  to  direct  the  juiy, 
but  directed  them  ''  that  such  evidence  could  not  be  a  suflicient  defence 
under  the  statute,  and  that  if  the  jury  believed  that  sales  were  effected 
by  the  defendant  in  the  manner  before  stated,  in  the  house  of  another 
as  a  hired  agent  or  bartender,  he  was  liable  under  the  statute." 

Tlie  court  are  of  opinion  that  these  directions  were  right.  The  evi- 
dence first  offered  on  the  part  of  the  prosecutor  constituted  a  ^yrimd 
facie  case  to  support  the  indictment.  The  Rev.  Sts.,  c.  47,  provide, 
in  s.  1,  that  no  person  shall  presume  to  be  a  common  seller  of  wine, 
brandy,  etc.,  unless  first  licensed  as  an  innholder  or  common  victualler. 
Section  2  provides,  that  if  any  person  shall  sell  an}'  spirituous  liquor,  to 


SECT.  I.]  COMMONWEALTH   V.    HADLEY.  399 

be  used  in  or  about  his  house  or  other  buildings,  without  being  duly 
licensed,  he  shall  forfeit,  ete.  Any  person  incurs  the  penalty  of  the 
first  section  who  habitually  sells  to  persons  indiscriminately,  although 
he  does  not  profess  to  be,  or  appear  to  exercise  the  vocation  of,  an 
innholder  or  common  victualler.  Commonwealth  v.  Pearson,  3  Met. 
449.  Any  person  incurs  the  penalty  of  the  second  section  by  selling 
any  quantity,  in  a  particular  instance,  to  be  used  in  his  house.  Com- 
monwealth V.  Thurlow,  24  Pick.  374.  When,  therefore,  it  was  shown 
that  the  defendant  was  making  sales  of  the  prohibited  article,  in  a  shop 
adapted  for  the  purpose,  to  be  used  on  the  premises,  he  was  thereby 
doing  acts  implying  that  he  claimed  and  had  possession  and  control  of 
the  article  sold,  and  also  that  he  had  such  actual  and  uncontrolled 
possession,  occupation,  or  use  of  tlie  shop  and  place  of  sale  and  con- 
sumption, as  were  necessary  and  sufficient  to  accomplish  the  act  which 
the  law  expressly  prohibits.  Unless,  therefore,  sometliing  farther  were 
shown  by  way  of  justification  or  excuse  the  defendant  must  be  con- 
victed. The  true  question,  therefore,  is,  whether  the  evidence  otfered 
bv  the  defendant,  if  it  had  been  admitted,  showing  that  the  premises 
w'ere  not  his  own,  but  that,  he  acted  as  the  agent  and  under  the 
authority  of  another  person,  without  showing  that  such  person  was 
licensed,  would  constitute  such  excuse  or  justification. 

Then  we  are  brought  to  the  question  of  construction  —  if,  indeed, 
there  be  room  for  construction  —  of  those  words  of  the  statute,  "any 
person  who  shall  sell."  It  appears  to  us  that  one  who  offers  an  article 
for  sale,  either  upon  the  application  of  the  purchaser  or  otherwise,  and 
who,  when  the  offer  is  accepted,  delivers  the  article  in  pursuance  of  the 
offer,  does  "  sell"  or  make  a  sale,  according  to  the  ordinary  sense  and 
meaning  of  that  term.  It  would  seem  strange  and  contradictory  to 
maintain  that  one  who  sells  goods  on  commission,  or  as  the  factor, 
agent,  or  salesman  of  another,  does  not  sell  them.  The  argumeni 
assumes  that  a  sale  must  be  construed  to  be  a  contract  by  which  the 
owner  of  property  alienates  it  and  transfers  his  title  to  another.  But 
this  is  a  very  limited  view  of  the  subject.  It  is  not  less  a  sale,  and 
even  a  valid  sale,  when  made  by  the  authority  of  the  owner.  So  the 
naked  possession  of  property,  however  obtained,  is  some  evidence  of 
title.  The  holder  may  make  a  sale  defdcto,  which  can  only  be  defeated 
by  one  having  a  higher  title,  and  which  may  be  ratified  by  the  assent  of 
the  owner.  The  statute  prohibits  all  sales  by  unlicensed  persons,  as 
well  sales  de  facto  as  sales  by  an  owner,  and  therefore  the  case  is 
within  the  words  of  the  statute. 

But  it  is  equally  within  the  spirit  of  the  statuce.  In  construing  an 
act  of  the  legislature,  as  in  construing  every  other  instrument,  we  are 
to  look  at  the  entire  act,  and  every  provision  and  clause  in  it,  in  order 
to  ascertain  the  meaning  and  intent.  And  although  the  same  latitude 
of  construction  is  not  allowed  in  criminal  prosecutions  as  in  civil  suits, 
still  the  subject-matter  is  not  to  be  overlooked.  The  language  of  the 
statute  is  to  be  so  construed,  when  it  reasonably  can  be,  as  to  promote 


400  COMMONWEALTH   V.    HADLEY.  [CHAP.  VI. 

rather  than  defeat  the  obvious  purposes  of  the  legislature.  Now,  in 
i-eading  this  statute,  it  is  impossible  not  to  perceive  that  the  plain  and 
governing  purpose  of  the  statute  is  to  restrain  and  prevent  the  dis- 
orders, breaches  of  the  peace,  riot,  pauperism,  and  crime,  which  would 
arise  from  the  too  free  use  and  too  easy  mode  of  obtaining  intoxicating 
liquor  in  small  quantities,  and  to  accomplish  this  by  prohibiting  the 
indiscriminate  sale  of  it  bj'  disorderl}-,  unsuitable,  and  unlicensed  per- 
sons. The  contemplated  mischiefs  arising  from  the  actual  sales  would 
not  be  less,  although  the  conduct  of  the  seller  should  also  be  unlawful 
in  other  respects ;  as  when  he  has  obtained  the  property  by  finding, 
and  converted  it  to  his  own  use,  or  taken  it  tortiously  bj'  an  act  of 
trespass,  or  actually  stolen  it.  Would  a  shop  opened  b}-  an  unlicensed 
person  for  the  indiscriminate  sale  of  spirituous  liquors  be  less  a  nui- 
sance because  it  is  also  a  receptacle  of  stolen  goods,  or  because  the  liquor 
actually-  sold  in  it  has  been  stolen  ?  I  shall  not  be  understood  to  inti- 
mate that  stealing  or  receiving  stolen  goods,  or  goods  obtained  unlaw- 
fully, would  be  punishable  under  this  statute  as  a  substantive  offence, 
but  only  that  the  actual  sale  of  intoxicating  liquor  is  not  the  less  within 
the  mischiefs,  and  the  express  prohibition  of  the  statute,  because 
the  subject  of  the  sale  has  come  unlawfully  to  the  possession  of  the 
seller. 

The  construction  contended  for  by  the  defendant,  by  which  the 
actual  seller  should  exempt  himself  from  the  penalty  of  the  law,  by 
showing  that  he  sold  for  the  use  and  benefit,  and  b}^  the  authority,  of 
another  person,  would  let  in  all  the  mischiefs  intended  to  be  prevented 
by  the  statute.  A  person  residing  out  of  the  State,  and  beyond  the 
jurisdiction  of  its  laws,  by  taking  the  lease  of  shops,  and  employing 
selling  agents  and  barkeepers,  might  wholh'  defeat  the  salutary  objects 
of  the  law. 

It  is  then  urged,  second! t/,  as  an  excuse  for  the  defendant,  that  he 
offered  to  show  that  he  was  a  hired  agent,  having  no  interest  in  the 
profits,  and  acting  in  the  presence  of  and  under  the  control  of  his 
employer.  As  to  his  being  an  agent,  the  considerations  already  stated 
apply  to  it.  As  to  his  acting  in  the  presence  of  his  employer,  we  think 
that  circumstance  would  make  no  difference  if  the  defendant  was  the 
ostensible  actor  in  the  sale  ;  because  one  who  sells  for  another,  although 
in  his  presence,  does  yet  sell,  and  the  law  fixes  the  penalty  upon  him 
who  does  the  act.  "We  are  to  understand  in  the  present  case  that  the 
sale  was  actually  made  by  the  defendant,  otherwise  he  would  not  have 
been  convicted  by  the  jury.  If  the  employer  should  expressly  or  tacitly 
command,  direct,  or  instigate  him  to  do  it,  both  might  be  liable  ;  for  it 
is  a  general  rule  of  law,  in  cases  of  tort,  that  when  two  or  more  are 
guilt}',  as  actors  or  participators,  of  one  and  the  same  offence,  each  is 
severally  liable  to  the  penalty,  and  either  may  be  severally  prosecuted 
for  it.  But  the  command  of  the  master  will  afford  no  iustification  or 
excuse  to  the  servant  making  tlie  sale,  becansR  it  is  an  unlawful'  com- 
mand, which  he  is  not  bound  to  obev.  and  for  the  doing  of  which  ht» 


SECT.  I.]  COMMONWEALTH    V.    IIADLEY.  401 

can  have  no  indemnity  from  the  employer.  These  points  are  familiar, 
and  are  well  stated  in  the  authorities  cited  in  the  argument.  Thus  it  ia 
stated  in  1  Bl.  Com.  429,  430,  ''  if  the  servant  commit  a  tresi)ass  by  the 
command  or  encouragement  of  his  master,  the  master  shall  be  guilty 
of  it,  though  the  servant  is  not  thereby  excused,  for  he  is  only  to  obey 
his  master  in  matters  that  are  honest  and  lawful."  So  in  2  Dane  Ab. 
316,  "  the  command  of  a  superior  to  an  inferior  to  commit  a  tort  ex- 
cuses the  latter  in  no  case  but  that  of  a  wife.  Such  inferior,  as  servant, 
is  bound  to  perform  only  the  lawful  commands  of  his  superior ;  and  the 
inferior  person  must  know,  too,  when  he  does  an  injury  ;  and  if  he  has 
to  pay  for  it,  he  has  no  remedy  against  his  master,  except  he  deceives 
him."     Perkins  v.  Smith,  Sayer,  40,  and  1  Wils.  328. 

Taken  in  connection  with  the  established  maxim  that  ignorance  of 
the  law  excuses  no  one  from  the  penalties  of  its  violation,  it  seems  to 
follow  as  a  necessar}-  consequence  that  a  salesman  or  barkeeper  cannot 
excuse  himself  by  showing  that  he  did  the  act  by  the  order  or  in  the 
presence  of  his  employer.  Whether  if  the  owner,  being  on  the  spot, 
should  direct  a  wife,  apprentice,  or  servant  to  draw  or  pour  out  the 
liquor,  or  to  deliver  it,  or  even  to  receive  payment  for  it,  the  subordi- 
nate would  be  liable,  is  a  question  which  we  are  not  called  upon  to 
decide,  and  which  must  depend  much  on  the  circumstances  of  particular 
cases.  It  might  give  rise  to  a  question  of  fact  whether  the  act  done  by 
the  subordinate  would  amount  to  an  actual  sale.  At  all  events,  the 
principal,  being  activelv  and  ostensibly  engaged  in  the  transaction, 
would  be  unquestionably  amenable  to  the  law  ;  and  this  consideration 
would  render  the  question  of  the  liability  of  the  subordinate  of  less 
practical  importance  to  the  due  execution  of  the  law. 

But  where  one  acts  as  an  agent  under  a  general  authority  to  sell 
for  account  of  another,  we  are  of  opinion  that  sales  of  liquor  made  by 
him  are  equally  oi)posed  to  the  letter  and  spirit  of  the  law  as  if  he 
were  selling  his  own  property,  on  his  own  account,  and  for  his  own 
profit. 

It  is  urged,  thirdly,  as  an  argument  against  this  view  of  the  law,  that 
if  correct,  ever}'  barkeeper  and  salesman  must  himself  be  licensed,  or 
he  would  subject  himself  to  the  penalties  of  the  law,  which  could  not 
have  been  contemplated  by  the  legislature.  But  we  think  this  is  not  a 
sound  conclusion  from  the  premises.  An  innkeeper  or  retailer  has  a 
laioful  authority  under  his  license  to  sell  spirituous  liquors,  under  cer- 
tain restrictions,  at  a  place  designated.  One  may  do  lawful  acts  by  an 
agent,  and  the  maxim  qui  facit  per  alium  facit  per  se  makes  them,  in 
legal  contemplation,  his  own  ;  and  his  license  will  authorize  him  to 
emplo}'  persons  under  him,  and  wnll  be  their  justification.  This  right 
must,  of  course,  have  its  reasonable  limits.  We  do  not  mean  to  inti- 
mate that  one  can  make  a  general  assignment  of  his  license,  because 
the  law  contemplates  a  personal  trust,  but  that  he  ma}'  authorize  others 
to  act  with  and  under  him  in  executing  the  powers  granted  to  him  by 
the  license.     All,  therefore,  that  an  agent  or  barkeeper  has  to  do.  in 


402  PEOPLE  V.    PARKS.  [CHAP.  VI. 

order  to  secure  an  immunit}-  from  the  penalties  of  the  law,  is  not 
to  obtain  a  license  himself,  but  to  be  well  assured  that  his  employer 
has  one.* 


PEOPLE  V.  PARKS. 
Supreme  Court  of  Michigan.     1882. 

[Reported  49  Michir/an,  333  ] 

Campbell,  J.  Respondent  was  convicted  under  the  statute  of  1881, 
making  it  a  misdemeanor  to  sell  intoxicating  liquor  to  persons  who 
are  in  the  habit  of  becoming  intoxicated.  The  sale  was  not  made  by 
respondent,  but  by  a  clerk.  The  court  below  held  that  the  respondent 
was  responsible  for  the  knowledge  of  his  clerk,  as  well  as  if  he  had 
known  the  condition  of  the  vendee  himself. 

The  statute  in  question  prohibits  sales  by  means  of  clerks  as  well  as 
in  person.  Laws  1881,  p.  355,  s.  12.  And  a  subsequent  section  (13) 
makes  violations  of  the  statute  misdemeanors,  and  punishable  as  such. 
But  it  would  be  an  unjust  and  inadmissible  interpretation  to  construe 
such  a  provision  as  covering  anything  but  an  act  in  which  the  will  of 
the  respondent  concurred  in  the  sale.  It  is  contrar}-  to  every  rule  of 
law  to  hold  a  person  criminall}'  responsible  for  an  act  in  which  he  has 
taken  no  part.  He  can  only  be  punished  for  what  is  his  own  wrong. 
Section  2  clearh'  implies  the  necessit}-  of  criminal  intent  as  an  element 
of  the  offence,  and  laj-s  down  certain  rules  of  presumption  involving 
personal  knowledge  of  the  act  done.  It  makes  the  act  of  sale  to  an 
improper  person  presumptive  evidence  of  such  intent  to  violate  the 
law.  The  case  comes  within  the  decision  in  Faulks  v.  People,  39  Mich. 
200.  It  cannot  be  permissible  to  give  an}'  other  construction,  which 
would  violate  the  elementary  rules  of  criminal  responsibility. 

Whatever  civil  liabilit}'  may  arise  from  the  acts  of  a  clerk,  the  crim- 
inal responsibility  must  fall  on  the  actual  wrong-doers,  who  have  done 
or  been  connected  with  the  violation  of  the  law  by  some  fault  of  their 
own. 

The  conviction  should  be  set  aside  and  the  case  dismissed. 

The  other  justices  concurred.^ 

*  Part  of  the  opinion,  relating  to  another  objection,  is  omitted. 
See  ace.  State  v.  Bell,  5  Porter,  365;  Com.  v.  Drew,  3  Cush.  279;   State  V.  Bugbee, 
22  Vt.  32.  —  Ed. 

«  But  see  People  v.  Roby,  52  Midi.  577.  —  Ed. 


SECT.  L]  KEGINA   V.   TYRRELL.  403 


REGINA   V.  TYRRELL. 

Court  for  Crown  Cases  Reserved.     1893. 

[Reported  1894,  1  Q.  B.  710.] 

Case  reserved  by  Mr.  Commissioner  Kerr. 

The  defendant,  Jane  Tyrrell,  was  on  September  15,  1893,  tried  and 
convicted  at  the  Central  Criminal  Court  on  an  indictment  charging  her, 
in  the  first  count,  with  having  unlawfully  aided  and  abetted,  counselled, 
and  procured  the  commission  by  one  Thomas  Ford  of  the  misdemeanor 
of  having  unlawful  carnal  knowledge  of  her  whilst  she  was  between  the 
ages  of  thirteen  and  sixteen,  against  the  form  of  the  statute,  etc. ;  and, 
in  the  second  count,  with  having  falsely,  wickedly,  and  unlawfully  so- 
licited and  incited  Thomas  Ford  to  commit  the  same  offence. 

It  was  proved  at  the  trial  that  the  defendant  did  aid,  abet,  solicit, 
and  incite  Thomas  Ford  to  commit  the  misdemeanor  made  punishable 
by  s.  5  of  the  Criminal  Law  Amendment  Act,  1885  (48  &  49  Vict. 
cl  69). 

The  question  for  the  opinion  of  the  Court  was,  "  Whether  it  is  an 
offence  for  a  girl  between  the  ages  of  thirteen  and  sixteen  to  aid  and 
abet  a  male  person  in  the  commission  of  the  misdemeanor  of  having 
unlawful  carnal  connection  with  her,  or  to  solicit  and  incite  a  male 
person  to  commit  tliat  misdemeanor." 

Lord  Coleridge,  C.  J.  The  Criminal  Law  Amendment  Act,  1885, 
was  passed  for  the  purpose  of  protecting  women  and  girls  against 
themselves.  At  the  time  it  was  passed  there  was  a  discussion  as  to 
what  point  should  be  fixed  as  the  age  of  consent.  Tliat  discussion 
ended  in  a  compromise,  and  the  age  of  consent  was  fixed  at  sixteen. 
With  the  object  of  protecting  women  and  girls  against  themselves  the 
Act  of  Parliament  has  made  illicit  connection  with  a  girl  under  that 
age  unlawful ;  if  a  man  wishes  to  have  such  illicit  connection  he  must 
wait  until  the  girl  is  sixteen,  otherwise  he  breaks  the  law  ;  but  it  is 
impossible  to  say  that  the  Act,  which  is  absolutely  silent  about  aiding 
or  abetting,  or  solicitimg  or  inciting,  can  have  intended  that  the  girls 
for  whose  protection  it  was  passed  should  be  punishable  under  it  for 
the  offences  committed  upon  themselves.  I  am  of  opinion  that  this 
conviction  ought  to  be  quashed. 

Mathew,  .J.  I  am  of  the  same  oi)inion.  I  do  not  see  how  it  would 
be  possible  to  obtain  convictions  under  the  statute  if  the  contention  for 
the  Crown  were  adopted,  because  nearly  every  section  which  deals 
with  offences  ir^  respect  of  women  and  girls  would  create  an  offence  in 
the  woman  or  girl.  Such  a  result  cannot  have  been  intended  by  the 
legislature.  There  is  no  trace  in  the  statute  of  any  intention  to  treat 
the  woman  or  girl  as  criminal. 

Grantham,  Lawrance,  and  Collins,  JJ.,  concurred. 

Conviction  quashed. 


404  COMMONWEALTH   V.    WILLARD.  [CHAP.  VI. 


COMMONWEALTH  v.   WILLARD. 
Supreme  Judicial  Court  of  Massachusetts.    1839. 

[Reported  22  Pick.  476.] 

This  was  a  writ  of  habeas  corpus  to  the  sheriff  of  this  county,  to 
bring  before  the  Court  the  bodj'  of  George  W.  Richardson. 

It  appeared,  that  Richardson  was  summoned  as  a  witness  before  the 
grand  jury  for  the  purpose  of  proving  that  one  Gould  had  sold  to  him 
spirituous  liquors,  in  violation  of  St.  1838,  c.  157,  §  1  ;  that  he  re- 
fused to  testify  on  the  ground  that,  as  such  sale  was  made  a  misde- 
meanor by  the  statute,  his  testimou}'  might  criminate  himself  and 
subject  him,  as  the  purchaser,  to  prosecution  at  common  law  for 
inducing  Gould  to  commit  a  misdemeanor ;  and  that  he  was  thereupon 
committed  to  prison  by  order  of  the  Court  of  Common  Pleas  for 
contempt. 

Shaw,  C.  J.^  .  .  .  The  witness  objected  to  testifying  on  the  ground 
that  as  the  selling  of  spirituous  liquors,  without  being  a  physician  or 
apothecar}'  licensed  for  that  purpose,  was  made  a  misdemeanor  by 
the  statute,  to  purchase  of  such  person  necessarily  implied  an  induce- 
ment held  out  to  commit  such  misdemeanor,  and  that  to  induce  another 
to  commit  a  misdemeanor  is  an  offence  punishable  at  common  law,  to 
which  the  Avitness  would  be  exposed.  But  the  Court  are  of  opinion 
that  the  witness  would  not  be  liable  to  an}-  prosecution  as  such  pur- 
chaser, and  therefore  would  not  criminate  himself  or  expose  himself  to 
punishment  by  such  a  purchase.  No  precedent  and  no  authority  has 
been  shown  for  such  a  prosecution,  and  no  such  prosecution  has  been 
attempted  within  the  knowledge  of  the  Court,  although  a  similar  law 
has  been  in  force  almost  from  the  foundation  of  the  government,  and 
thousands  of  prosecutions  and  convictions  of  sellers  have  been  had 
under  it,  most  of  which  have  been  sustained  by  the  testimony  of  buyers. 
That  such  a  i)rosecution  is  unprecedented,  shows  very  strongly  what 
has  been  understood  to  be  the  law  upon  this  subject. 

It  is  difficult  to  draw  any  precise  line  of  distinction  between  the 
cases  in  which  the  law  holds  it  a  misdemeanor  to  counsel,  entice,  or 
induce  another  to  commit  a  crime,  and  where  it  does  not.  In  general, 
it  has  been  considered  as  applying  to  cases  of  felony,  though  it  has 
been  held  that  it  does  not  depend  upon  the  mere  legal  and  technical 
distinction  between  felony  and  misdemeanor.  One  consideration,  how- 
ever, is  manifest  in  all  the  cases,  and  that  is,  that  the  offence  proposed 
to  be  committed  by  the  counsel,  advice  or  enticement  of  another,  is  of 
a  high  and  aggravated  character,  tending  to  breaches  of  the  peace  or 
other  great  disorder  and  violence,  being  what  are  usually  considered 
mala   in  se  or  criminal  in  themselves,   in  contradistinction   to    mala 

^  Part  of  the  opinion  is  omitted.  — Ed. 


SECT.  I.J  COMMONWEALTH   V.   WILLARD.  405 

prohibita,  or  acts  otherwise  indifferent  than  as  the_y  are  restrained  by 
positive  law.  All  the  cases  cited  in  support  of  the  objection  of  the 
witness  are  of  this  description. 

Rex  V.  Higgins,  2  East,  5,  was  a  case  where  tlie  accused  had  so- 
licited a  servant  to  steal  his  master's  goods,  and  it  was  held  to  be 
a  misdemeanor.  The  crime,  if  committed  pursuant  to  such  solicitation, 
would  have  been  a  felony. 

Rex  V.  Phillips,  6  East,  464,  was  a  manifest  attempt  to  provoke 
another  person  by  a  letter  to  send  a  cliallenge  to  fight  a  duel.  For 
altliough  the  direct  purpose  of  the  letter  of  the  defendant  was  to 
induce  the  other  party  to  send  a  challenge,  which  is  technically  a  mis- 
demeanor, yet  the  real  ol^ject  was  to  bring  about  a  deed,  which  is  a 
high  and  aggravated  breach  of  the  public  peace,  and  where  it  results 
in  the  death  of  either  party,  is  clearlj'  murder.  It  was  averred  to  be 
done  with  an  intent  to  do  the  party  bodily  harm  and  to  break  the 
king's  peace,  and  such  intent  was  considered  a  material  fact  to  be 
averred  and  proved. 

A  case  depending  upon  a  similar  principle  in  our  own  books  is  that 
of  Commonwealth  v.  Harrington,  3  Pick.  26,  in  which  it  was  held 
that  to  let  a  house  to  another,  with  an  intent  that  it  should  be  used 
and  occupied  for  the  purpose  of  prostitution,  with  the  fact  that  it  was 
so  used,  was  a  misdemeanor.  The  keeping  of  such  a  disorderly  house 
has  long  been  considered  a  high  and  aggravated  offence,  criminal  in 
itself,  tending  to  general  disorder,  breaches  of  the  public  peace,  and  of 
common  nuisance  to  the  community.  It  is  in  cases  of  this  character 
only,  that  the  principle  has  been  applied  ;  but  we  know  of  no  case, 
where  an  act,  which,  previously  to  the  statute,  was  lawful  or  indifferent, 
is  prohibited  under  a  small  specific  penalty,  and  where  the  soliciting  or 
inducing  another  to  do  the  act,  by  which  he  may  incur  the  penalty,  is 
held  to  be  itself  punishable.  Such  a  case  perhaps  may  arise,  under 
peculiar  circumstances,  in  which  the  principle  of  law,  which  in  itself  is 
a  highl}^  salutary  one,  will  applj- ;  but  the  Court  are  all  of  opinion 
that  it  does  not  apply  to  the  case  of  one  who,  b}'  purchasing  spirituous 
liquor  of  an  unhcensed  person,  does,  as  far  as  that  act  extends,  induce 
that  other  to  sell  in  violation  of  the  statute. 

There  is  another  view  of  the  subject  which  we  think  has  an  im- 
portant bearing  on  the  question,  if  it  is  not  indeed  decisive.  The 
statute  in:poses  a  penalty  upon  an}-  person  who  shall  sell.  But  every 
sale  implies  a  purchaser ;  there  must  be  a  purchaser  as  well  as  a  seller, 
and  this  must  have  been  known  and  understood  by  the  legislature. 
Now,  if  it  were  intended  that  the  purchaser  sliould  be  subject  to  any 
penalty,  it  is  to  be  presumed  that  it  would  have  been  declared  in  the 
statute,  either  by  imposing  a  penalty  on  the  buyer  in  terms,  or  b}'  ex- 
tending the  penal  consequences  of  the  prohibited  act,  to  all  persons 
aiding,  counselling,  or  encouraging  the  principal  offender.  There  being 
no  such  provision  in  tlie  statute,  there  is  a  strong  implication  that 
none  such  was  intended  by  the  legislature. 


406  COMMONWEALTH   V.   KOSTENBAUDER.  [CHAP.  VI. 

Ordered,  tliat  the  prisoner  be  remanded  to  the  custody  of  the  sheriff 
to  abide  the  order  of  the  Court  of  Common  Pleas  under  which  he 
stands  committed. 


COMMONWEALTH    v.   KOSTENBAUDER. 

Supreme  Couut  of  Pennsylvania.     1886. 

[Reported  20  Atlantic  Reporter,  995.] 

Certiorari  to  Court  of  Quarter  Sessions,  Lehigh  Count}'. 

Kostenbauder,  Houck,  and  Schweitzer  induced  Boehmer,  a  saloon- 
keeper, to  give  them  liquor  on  Sunday.  Later  Boehmer  was  sued  for  a 
violation  of  the  law,  in  which  proceeding  Kostenbauder,  llouck,  and 
Schweitzer  appear  as  witnesses  against  him.  Boehmer,  tlien  alleging 
that  there  had  been  a  full  understanding  between  the  three  to  procure 
from  him  the  liquor  and  then  proceed  against  him  in  order  that  they 
might  get  the  share  coming  to  the  informer  in  such  cases,  made  an 
information  against  Kostenbauder,  Houck,  and  Schweitzer,  and  had 
them  arrested  for  conspirac}'.  Upon  return  of  the  prosecution  to  the 
Court  of  Quarter  Sessions  an  indictment  was  drawn  and  presented  to 
the  grand  jury,  which  returned  "a  true  bill,"  whereupon  the  defen- 
dants moved  to  quash  the  bill  of  indictment,  on  the  ground  that  it  did 
not  charge  an  indictable  offence.  The  court  held  that  no  indictable 
offence  was  charged,  and  quashed  the  indictment.  The  following  is  a 
cop3'  of  the  opinion  of  the  Quarter  Sessions  :  — 

"Albright,  P.  .J.  If  the  law  provided  for  the  punishment  of  the 
man  who,  on  Sunda}',  bu3-s  or  drinks,  at  a  licensed  public  house,  intox- 
icating liquor,  tlien  these  defendants  could  be  held  to  answer  this  indict- 
ment ;  but,  inasnuich  as  the  man  wlio  buys  or  drinks  the  li(|uor  is  not 
punishable,  therefore  the  defendants  cannot  be  held  liable  for  conspiracj 
to  procure  beer  on  Sunday  from  the  saloon-keepers  named  in  the  indict- 
ment. The  law  im[)Oses  the  penalty  on  him  who  sells  liquor  on  Sun- 
da}-,  or  who,  being  a  licensed  public-house  keeper,  permits  it  to  be 
drank  on  his  premises  on  that  day.  The  real  offence  charged  in  this 
indictment  is  the  conspiracy  b\'  tliese  three  defendants  to  induce  the 
saloon-keeper  to  sell  or  give  them  drinks  on  Sunda}'.  The  further  alle- 
gations, that  drink  was  obtained  ;  that  it  was  the  intention  of  getting 
the  informer's  share  of  the  penalties  ;  and  that  suits  were  brought  for 
the  penalties,  —  add  no  strength  to  the  charge.  It  was  not  unlawful 
to  accept  the  drink,  nor  to  sue  for  the  penalties.  Counsel  for  the  Com- 
monwealth and  for  defendants  agree  that  this  is,  in  point  of  law,  the 
correct  view  of  the  question.  It  is  Impossible  to  hold  that  persons  are 
guilty  in  law  for  conspiring  to  do  an  act,  where  the  act  imputed  is  such 


SECT.  I.]  COMMONWEALTH   V.   KOSTENBAUDER.  407 

that  if  the  intention   had  been  consummated  no   offence  would  have 
been  committed.     It   is  not  alleged  that  the  defendants  by  furnishing 
a  stock  of  liquor,  oi    by  any  other  means,  instigated  or  furthered  the 
illegal  act  of  selling  or  giving  away  on  Sunday,  nor  that  they  conspired 
by  force  or  tlireats  to  coerce  the  saloon-keepers  to  sell.    The  latter  were 
free  agents.    Tliey  sold  or  gave  away  the  beer  because  they  chose  to  do 
so.     Where  there  is  a  confederacy,  but  nothing  more  than  solicitations 
to   an    intelligent    free  agent   to  conmiit  a  crime,  it  is  not  indictable 
unless  it  is  made  so  l)y  statute.     2  Whart.  Crim.  Law  (8th  ed. ),  §  2691. 
Chief  Justice  Gibson,  in  Shannon  v.  Com.,   14  Pa.  22G,  said  that  if 
confederacy  constituted  conspiracy,  without    regard  to   the  quality   of 
the  act  to  l)e  done,  a  party  n)ight  incur  tlie  guilt  of  it  by  having  agreed 
to  be  the  passive  subject  of  a  battery.     Accordingly  these  defendants 
would  not  have  been  mdictable  if  they  had  combined  and  agreed  to- 
gether to  go  to  the  prosecutor's  house  and  solicit  and  induce  him  to 
beat  them.     They  are  not  indictable  for  having  conspired    to    induce 
Iiim  to  give  to  them  drinks  on  Sunday.    Counsel  for  the  Commonwealth 
rely  principallj'  upon  the  case  of  Hazen  v.  Com.,  23  Pa.  3.55.     It  is 
asserted  that  it  was  there  held  that  Hazen  and  three  others  had  been 
properly  convicted  upon   an    indictment   charging  that  they  had  con- 
spired to  solicit,  induce,  and  procure  the  officers  of  a  bank  to  violate  a 
statute  which  made  it  a  penal  offence  to  issue  notes  of  banks  of  other 
states,  of  a  denomination  less    than   five  dollars.      The   statute  gave 
the  informer  the  one-half  of  the  money  penalty.     But  the  counts  upon 
which  Hazen  and  his  co-defendants  were  convicted  charged  more  than 
the  mere  conspiracy  to  procure  the  bank  officers  to  issue  the  forbidden 
notes.     It  was  also  charged,  and  found,  that  one  of  them  had  depos- 
ited in  the  bank  large  sums  of  money,  not   for  lawful  business,  and 
drew  them  by  checks  for  unequal  sums,  and  required  the  checks  to  be 
paid  in  bank-notes  of  less  than  $5,  and  that  the  defendants  had  threat- 
ened to  bring  penal  actions  unless  they  were  paid  S3, 250  ;  that  it  was 
the  purpose  of  the  conspiracy  to  compel  the  bank  officers  unjustly  and 
unlawfully  to  pay  large   sums  of  money  for   the  corrupt  gain  of  tbe 
defendants.     The  Supreme  Court  said  that  they  were  left  to  infer  that 
such  '  large  sums  of  money'  were  to  be  obtained  by  some  other  means 
than    a  fair  prosecution  of  the  offending   bank  officers  ;  that  it  was 
charged  that  the  money  was  to  be  drawn  from   the  victim::  by  com- 
pounding the  offences ;  that  it  had  been  found  as  a  fact  that  the  object 
of  the  defendants  was  not  the  detection  and  suppression  of  crime,  but 
the  promotion  of  their  own  corrupt  gain  ;  that  the  defendants  sought 
to  extort  4iush  money'  for  suppressing  the  evidence  of  guilt.     The 
court  also  said  that  those  who  induced  a  violation  of  the  law  for  the 
purpose  of  compounding  the  offence  and  making   gain  by  defeating 
public  justice  were  guilty  of  a  gross  wrong.     In  this  case  it  is  not 
averred  that  the  defendants  offered  to  settle  or  compound  the  offences, 
)ior  that  they  obtained  any  part  of  the  informer's  share  of  the  penal- 
ties, nor  even  that  the  suits  against  the  saloon-keepers  were  prosecuted 


408  COMMONWEALTH   V.    KOSTENBAUDER.  [CHAP.  VI. 

to  judgment.  In  that  reference  it  is  simply  alleged  that  the  defen- 
dants, and  others  acting  vviili  them,  have  caused  writs  of  summons  to  be 
issued  by  the  aldermen  for  the  penalty  of  $50  in  each  case.  The  deci- 
sion of  the  question  presented  in  Hazen  v.  Com.  does  not  warrant  a 
ruling  that  this  indictment  can  be  sustained,  nor  has  any  authority  for 
such  a  conclusion  been  found.  The  motion  to  quash  must  be  sustained. 
If  counsel  for  the  Commonwealth  desire  to  obtain  the  decision  of  the 
Supreme  Court  upon  this  question,  it  is  probable  that  this  court,  upon 
application  of  the  district  attorney,  will  make  an  order  that  the  defen- 
dants be  held  under  bail  until  such  decision  has  been  obtained.  Tliey 
are  now  under  recognizance  for  their  appearance  at  the  next  term. 
How,  December  26,  1885,  the  indictment  is  quashed  ;  the  recognizance 
of  defendants  to  remain  in  force  unless  discharged  by  order  of  the 
court." 

J.  3Iarshall  Wright,  Dist.  Atty.,  Henninger  &  Be  Walt,  and  E.  J. 
Lichtenwalney'^  for  the  Commonwealth. 

John  C.  Merrill  and  Charles  R.  James,  for  Kostenbauder  and 
Houck. 

W.  J.  Stein,  for  Schweitzer. 

Per  Curiam.  The  judgment  of  the  court  below  is  affirmed  by  a 
divided  court. 


SECT.  II.]  MEMORANDUM.  409 

SECTION   11. 

Innocent  Agents. 
MEMORANDUM. 

[Reported  Keli/ng,  52.] 

My  Brother  Twisden  shewed  me  a  report  which  he  had  of  a  charge 
given  by  Justice  Jones  to  the  grand  jury  at  the  King's  Bench  Bar  in 
Michaelmas  Term,  9  Car.  1.,  in  which  he  said  that  poisoning  another 
was  murder  at  common  law.  And  the  statute  of  1  Ed.  VI.  was  but 
declaratory  of  the  common  law,  and  an  affirmation  of  it.  He  cited 
Vaux  and  Ridley's  Case.  If  one  drinks  poison  by  the  provocation  or 
persuasion  of  another,  and  dieth  of  it,  this  is  murder  in  the  person  that 
persuaded  it.  And  he  took  this  difference  :  If  A.  give  poison  to  J.  S. 
to  give  to  J.  D.,  and  J.  S.,  knowing  it  to  be  poison,  give  it  to  J.  D. 
who  taketh  it  in  the  absence  of  J.  S.  and  dieth  of  it,  in  this  case  J.  S. 
who  gave  it  to  J.  D.,  is  principal,  and  A.,  who  gave  the  poison  to  J.  S. 
and  was  absent  when  it  was  taken,  is  but  accessory  before  the  fact. 
But  if  A.  buyeth  poison  for  J.  S.,  and  J.  S.  in  the  absence  of  A.  taketh 
it,  and  dieth  of  it,  in  this  case  A.,  though  he  be  absent,  yet  he  is  prin- 
cipal. So  it  is  if  A.  giveth  poison  to  B.  to  give  unto  C,  and  B.,  not 
knowing  it  to  be  poison,  but  believing  it  to  be  a  good  medicine,  giveth 
it  to  C.  who  dieth  of  it;  in  this  case.  A.,  wlio  is  absent,  is  principal, 
or  else  a  man  should  be  murdered  and  there  should  be  no  principal. 
For  B.,  who  knew  nothing  of  the  poison  is  in  no  fault,  though  he  gave 
it  to  C.  So  if  A.  puts  a  sword  into  the  hand  of  a  madman,  and  bids 
him  kill  B.  with  it,  and  then  A.  goeth  away,  and  the  madman  kills  B. 
with  the  sword  as  A.  commanded  him,  this  is  murder  in  A.  though 
absent,  and  he  is  principal ;  for  it  is  no  crime  in  the  madman  who  did 
the  fact,  by  reason  of  his  madness.  And  he  said  this  case  was  lately 
before  himself  and  Baron  Trevor  at  the  Assizes  at  Hereford.  A  woman 
after  she  had  two  daughters  by  her  husband,  eloped  from  him  and  lived 
with  another  man.  And  afterwards  one  of  her  daughters  came  to 
her,  and  she  asked  her  how  doth  your  father,  to  which  her  daughter 
answered,  that  he  had  a  cold,  to  which  his  wife  replied,  here  is  a  good 
powder  for  him,  give  it  him  in  his  posset;  and  on  this  the  daughter 
carried  home  the  powder,  and  told  all  this  that  her  mother  had  said  to 
her,  and  to  her  other  sister,  who  in  her  absence  gave  the  powder  to 
her  father  in  his  posset,  of  which  he  died.  And  he  said  that,  upon 
conference  with  all  the  judges,  it  was  resolved  that  the  wife  was  prin- 
cipal in  the  murder,  and  also  the  man  with  whom  she  ran  away,  he 
being  proved  to  be  advising  in  the  poison  ;  but  the  two  daughters  were 
in  no  fault,  they  both  being  ignorant  of  the  poison.  And  accordingly, 
the  man  was  hanged,  and  the  mother  burnt. 


410  REGINA   V.    BANNEN.  [CHAI     71. 


REGINA   V.  BANNEN. 
Crown  Case  Reserved.     1844. 

[Reported  2  Moody,  309.] 

The  prisoner  was  tried  before  Mr.  Baron  Gurney,  at  the  Spring 
Assizes  lor  the  county  of  Warwick,  1844,  on  an  indictment  for  feloni- 
ously making  a  die,  which  would  impress  the  figure,  stamp,  and 
apparent  resemblance  of  the  obverse  side  of  a  shilUng. 

Second  count,  for  feloniously  beginning  to  make  such  a  die. 

Third  count,  for  feloniously  making  a  die  which  was  intended  to 
impress  the  figure,  stamp,  and  apparent  resemblance  of  the  obverse 
side  of  a  shilling. 

It  w^as  proved  by  Charles  Frederick  Carter,  a  die-sinker  at  Birming- 
ham, that  the  prisoner  applied  to  him  to  sink  two  dies  for  counters  for 
two  whist  clubs,  one  at  Exeter  and  the  other  at  Blandford,  stating 
that  it  was  their  practice  to  play  with  counters  with  one  side  resem- 
bling coins,  and  that  they  wished  to  have  counters  stamped  by  dies, 
to  be  made  in  pursuance  of  the  following  directions  :  — 

Four  dies  for  whist  counters  ;  obverse,  head  of  Queen  Victoria,  as  in 
the  shilling  coin ;  reverse,  Blandford  whist  club,  established  1800. 
Obverse,  one  shilling,  as  in  coin,  with  wreath,  etc.  ;  reverse,  Exeter 
whist  club,  established  in  1800.  The  obverse  to  be  as  much  a.  facsimile 
as  can  be ;  the  letters  on  the  reverse  to  vary  in  size  ;  all  the  dies  to  be 
the  same  size,  and  fit  either  collar. 

When  Mr.  Carter  considered  these  directions,  it  occurred  to  him  that 
there  was  something  very  suspicious  in  them,  and  he  applied  to  the 
agent  of  the  mint  at  Birmingham,  and  communicated  the  order  to  him. 
The  agent  sent  to  the  officers  of  the  mint  in  London  for  instructions, 
and  Mr.  Carter  was  by  them  directed  to  execute  the  prisoner's  order. 
He  proceeded  ;  a  long  correspondence  took  place  on  account  of  the 
work  not  being  executed  within  the  time  expected.  In  the  course  of 
the  correspondence,  the  prisoner  desired  to  have  the  obverse  of  one  of 
the  pieces  and  the  obverse  of  the  other  finished  first,  and  they  were 
so.  When  they  were  finished,  they  formed  a  die  for  the  coining  of  a 
shilling,  and  an  impression  made  by  the  dies  was  produced  in  court. 

3Ir.  Serjt.  Adams,  for  the  prisoner,  objected  that  the  prisoner  could 
not  be  convicted,  as  he  had  not  himself  done  anything  in  the  construc- 
tion of  the  die,  and  that  he  was  not  answerable  in  this  form  of  charge 
for  the  act  of  Carter  ;  that  Carter  having  acted  under  the  instructions 
of  the  mint,  no  felony  whatever  had  been  committed  ;  and  that  the 
prisoner  should  have  been  indicted  for  a  misdemeanor,  in  inciting 
Carter  to  commit  a  felony. 

The  learned  judge  reserved  the  point  for  the  opinion  of  the  judges. 
The  jury  found  the  prisoner  guilty. 


SECT.  II.]  REGINA   V.    BAXNEN.  411 

This  case  was  argued  in  Easter  term,  1844,  before  all  the  judges 
except  Coleridge,  J.,  and  Maule,  J. 

Whitehurst,  for  the  prisoner.  Tlie  prisoner  did  not  commit  the  offence 
as  charged  in  the  indictment.  The  statute  2  W.  IV.,  c.  34,  s.  10,  enacts 
tnat  "  if  any  person  shall  knowingly  and  without  laM^ful  authority  (the 
proof  of  which  authority  shall  lie  on  the  party  accused)  make,  &c.,  or 
begin  to  make,  any  puncheon,  &c.,  die,  &c.,such  person  shall  be  guilty 
of  felony."  Here  no  person  has  without  lawful  authority  made  or  begun 
to  make  a  die.  The  only  person  who  has  in  fact  made  or  begun  to 
make  a  die  is  Carter.  Before  Carter  begins,  he  applies  to  the  mint. 
He  must  be  taken  to  have  known  the  law,  and  applies  to  get  their 
authority  to  proceed.  The  officers  of  the  mint  gave  him  orders  to  pro- 
ceed ;  he  therefore  had  lawful  authority.  If  they  had  power  to  give 
the  authority,  then  there  was  no  offence.  If  they  had  not,  then  Carter 
is  guilty  of  the  felony  as  a  principal,  and  the  prisoner  ought  to  have 
been  indicted  as  an  accessory  before  the  fact.  If  Carter  was  innocent, 
the  prisoner  could  not  be  an  accessory,  nor  could  he  be  a  principal ;  he 
is  not  present ;  and  if  another  does  the  act  for  him  in  his  absence,  that 
person  must  be  altogether  innocent ;  to  be  innocent  he  must  be  igno- 
rant of  any  wrong  in  what  he  is  doing.  Suppose  a  person  knowingly 
employs  an  ignorant  agent  to  deliver  a  forged  note  ;  the  delivery  is 
his,  because  the  agent  is  ignorant ;  so  if  a  person  employs  an  ignor- 
ant agent  to  administer  poison,  that  person  may  be  said  himself  to 
administer.  Carter  here  cannot  be  said  to  be  ignorant.  He  knows 
the  use  to  which  the  dies  are  applicable  and  the  guilty  purpose  for  which 
they  were  intended  by  the  prisoner.  The  dies  are  also  made  with  the 
knowledge  of  the  mint.  For  these  reasons  Carter  cannot  be  said  to 
be  a  mere  ignorant  agent  of  the  prisoner,  and  therefore  the  prisonei 
cannot  be  a  principal  felon. 

Waddington,  for  the  Crown.  There  is  no  doubt  that,  if  Carter  wajj 
guilty  of  felony,  this  indictment  fails.  But  it  is  impossible  to  contend 
that  on  these  facts  Carter  was  a  felon.  Perhaps,  strictly  speaking,  no 
one  could  have  lawful  authority  to  make  coining  instruments  ;  certainly 
not,  if  Carter  had  not. 

[TiXDAL,  C.  J.  The  "  having  lawful  authority"  applies  to  the  officer? 
and  servants  of  the  mini.] 

It  is  agreed  that  in  one  sense  he  did  the  act  knowingly ;  but  mere 
knowledge  is  not  enough.  The  statute  means  guilty  knowledge  ;  and 
that  is  the  distinction  clearly  pointed  out  in  Foster's  "Discourse  on 
Accomplices,"  p.  349,  etc.  To  be  a  felon  there  must  be  a  guilty  knowl- 
edge. The  cases  of  the  child  or  madman  are  well  established.  Now 
Carter  certainly  knew  what  he  was  doing,  but  had  no  intention  of  any 
felony  or  furthering  a  felony  ;  and  the  authority  and  knowledge  of  the 
mint  would  be  clearly  sufficient  to  make  his  knowledge  innocent. 

In  Rex  V.  Palmer  and  Hudson,  Russ.  &  Ry.  72,  which  is  reported 
with  the  judgment  delivered  by  Rooke,  J.,  1  B.  &  P.  New  Rep.  97, 
this  distinction  is  carried  out,  and  the  case  put  of  an  uttering  a  forged 


412  EEX  V.   BINGLEY.  [CHAP.  VI. 

note  by  means  of  an  agent  ignorant  of  the  forgery  is  stated  to  be  law. 
This  has  since  been  held  to  be  law  in  Rex  v.  Giles,  1  Moody  C.  C.  R. 
166.  The  agent  must  be  an  innocent  agent.  The  cases  all  turn  on 
the  distinction  of  innocent  knowledge  or  guilty  knowledge.  Carter 
was  clearly  an  innocent  agent,  and  the  prisoner  was  therefore  the 
principal. 

Whitehurst,  in  reply.  Here  Carter,  the  agent,  in  fact  does  nothing 
at  all  until  he  has  the  orders  of  the  mint.  He  is,  througiiout,  the  agent 
of  the  mint,  not  of  the  prisoner. 

All  the  judges  present,  except  Cresswell,  .J.,  thought  Carter  au 
innocent  agent,  and  held  the  conviction  good.^ 


SECTION   HI. 

Joint  Principals. 

REX    V.   BINGLEY. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  t^-  Ryan,  446.] 

The  three  prisoners  were  tried  and  convicted  before  Mr.  Justice 
.Richardson,  at  the  Lent  assizes  for  the  county  of  VVarwick,  iu  the 
3'ear  1821,  on  an  indictment  the  first  count  of  which  charged  the 
prisoners  with  forging  and  counterfeiting  a  £5  bank  note,  with  intent 
to  defraud  the  Governor  and  Company  of  the  Bank  of  England.  The 
third  count  charged  them  with  falsel}-  making,  forging,  and  counter- 
feiting, and  causing  and  procuring  to  be  falsely  made,  forged,  and 
counterfeited,  and  willingly  acting  and  assisting  in  the  false  making, 
forging,  and  counterfeiting,  a  promissory  note,  for  the  payment  of 
money,  with  the  like  intent.  There  were  other  counts  for  disposing 
of,  and  putting  away  scienter,  &c. 

It  appeared  in  evidence  that  Bingley  and  Button,  and  one  George 
Peacock,  an  accomplice,  agreed  to  take,  and  did  take  a  house  in  Bir- 
mingham, for  the  purpose  of  carrying  on  therein  the  manufacture  of 
forged  bank  notes.  The  first  operation  was  the  purchasing  of  proper 
paper,  and  the  cutting  of  it  into  pieces  of  proper  size  ;  after  which  it 
was  taken  to  the  prisoner  Batkin,  a  copper-plate  printer,  whose  work- 
shop was  in  a  different  part  of  Birmingham,  to  be  by  him  printed,  and 
he  accordingl}'   struck  off  in  blank  all  the  printed  part  of  the  notes, 

1  See  ace.  Reg.  v.  Clifford,  2  C.  &  K.  202;  Reg.  v.  Bleasdale,  2  C.  &  K.  765;  Gregory 
V.  State,  26  Ohio  St.  510 ;  State  v.  Learnard,  41  Vt.  585.  And  see  Williamson  v.  State. 
16  Ala.  431;  Com.  v.  Hill,  145  Ma.ss.  305.  —  Ed. 


SECT.  III.]  REX    V.    BINGLEY.  413 

except  the  date  line  and  the  number.     He  also  impressed  on  the  paper 
the  waxy  horizontal  lines. 

The  blanks  were  then  brought  back  to  the  house  of  Bingley,  Dutton, 
&  Peacock,  and  there  the  water  mark  was  introduced  into  the  paper ; 
after  which  Bingley,  in  the  presence  of  Dutton  and  Peacock,  impressed 
the  date  line  and  the  number,  and  Dutton  added  the  signature. 

Sometimes  the  date  line  and  number  were  inserted  before  the  signa- 
ture was  inserted,  and  sometimes  the  signature  before  the  date  Une 
and  number ;  but  in  a  certain  class  of  notes  (of  which  the  note  in  the 
indictment  was  one)  the  accomplice  said  that  the  signature  was  added 
last. 

The  notes  were  then  complete,  although  the}-  underwent  another 
operation,  that  of  pressing  them  between  plain  sheets  of  tin,  in  order 
to  make  the  surface  smooth,  before  they  were  put  into  circulation. 

Peacock,  the  accomplice,  did  not  know  that  Batkin  was  employed  to 
print  the  blank  notes,  nor  did  it  appear  that  Batkin  ever  was  present 
when  Bingle}-  and  Dutton  filled  up  and  completed  the  notes. 

The  accomplice  stated  that  Bingley  and  Dutton  were  both  present 
when  Bingley  impressed  the  date  line  and  number  on  that  class  of 
notes  of  which  the  note  stated  in  the  indictment  was  one,  but  he  said 
he  was  not  certain  whether  Bingley  was  present  when  Dutton  after- 
wards added  the  signature  to  the  class  of  notes. 

The  prosecutors  elected  to  proceed  on  the  counts  for  forging. 

Upon  this  evidence  the  learned  judge  left  it  to  the  jury  whether 
the  three  prisoners  did  concur  and  co-operate  in  the  joint  design  of 
forging  the  five-pound  note  mentioned  in  the  indictment  (among  other 
notes)  with  intent  to  put  it  into  circulation,  and  whether  they  all  did 
perform  their  respective  part  in  the  execution  of  that  design  within 
the  county  of  Warwick.  If  so,  the  learned  judge  advised  them  to  find 
them  all  guilty  of  the  forgery. 

The  learned  judge  further  directed  them  to  find  whether  the  two 
prisoners,  Bingley  and  Dutton,  were  present  when  the  note  mentioned 
in  the  indictment  was  completed  by  adding  the  date  line  and  the 
signature. 

The  jury  found  that  all  three  concurred  and  co-operated  in  the  de. 
sign  and  execution  of  the  forgery,  each  taking  his  own  part,  within 
the  county.  They  also  found  that  Bingley  and  Dutton  acted  together 
in  completing  the  notes,  and  therefore  found  all  three  guilty  on  the 
counts  for  forging. 

The  learned  judge  passed  sentence  on  the  prisoners  ;  but  respited 
their  execution,  in  order  to  submit  to  the  judges  the  following  ques- 
tions :  — 

First,  Do  the  acts  of  parliament  which  relate  to  the  forging,  &c., 
and  causing  to  be  forged,  &c..  and  acting  and  assisting  in  the  forging, 
&c.,  of  promissory  notes  apply  to  Bank  of  England  7iotes.  which, 
although  they  are  undoubtedly  promissory  notes,  are  the  subject  of 
distinct  legislative  provisions  ? 


414  COMMONWEALTH   V.    LOWKEY.  [CHAP.  VI. 

Second!}',  Upon  the  evidence  and  the  finding  of  the  jury,  was  this 
a  joint  offence  of  forging  in  the  three  prisoners,  or  at  least  in  the  two 
prisoners,  Bingley  and  Dutton?^ 

In  Easter  term,  1821,  the  judges  met  and  considered  this  case.  They 
held  that  the  conviction  was  right  as  to  all  the  prisoners :  the  judges 
were  of  opinion  that,  as  each  of  the  prisoners  acted  in  completing 
some  part  of  the  forgery,  and  in  pursuance  of  the  common  plan,  each 
was  a  principal  in  the  forgery  ;  and  that  although  the  prisoner  Batkin 
was  not  present  when  the  note  was  completed  by  the  signature,  he 
was  equally  guilty  with  the  others. 


COMMONWEALTH    v.    LOWREY. 
Supreme  Judicial  Court  of  Massachusetts.     1893. 

[Reported  158  Mass.  18.] 

Holmes,  J.^  The  main  question  for  us  is  whether  there  was  any 
evidence  of  a  criminal  breaking  and  entering.  The  jury  were  warranted 
in  finding  that,  in  pursuance  of  a  preconcerted  scheme,  the  defendant 
Johnson,  making  a  pretence  of  a  wish  to  purchase  an  article,  got  the 
night  clerk  of  the  Theodore  Metcalf  Company  to  let  him  into  the  com- 
pany's shop  at  about  midnight ;  that  while  the  night  clerk  was  in  the 
cellar  getting  the  article,  Johnson  unbolted  the  door  which  had  been 
rebolted  behind  him  after  his  admission,  and  let  in  the  defendant 
Lowrey,  who  concealed  himself  and  remained  behind  when  Johnson 
left,  and  afterwards  broke  open  the  draw,  etc.  The  court  seems  to 
have  required  the  jur}'  to  find  that  Lowrey  opened  the  door  as  a  con- 
dition to  their  finding  him  guilty. 

It  was  not  necessary  that  Lowre}'  should  have  touched  the  door  if  he 
procured  himself  to  be  let  in  by  an  accomplice  and  entered  with  feloni- 
ous intent.  He  might  have  been  convicted,  even  if  the  hand  which  he 
made  use  of  was  innocent,  as  in  case  of  a  servant  or  constable.  Le 
Mott's  case,  J.  Kel.  42  ;  Farre  &  Chadwick's  case,  J.  Kel.  43  ;  Cassy 
&  Cotter's  case,  J.  Kel.  62  ;  Hawkins's  case,  2  East  P.  C.  485  ;  Row- 
land V.  Commonwealth,  82  Penn.  St.  306,  323  ;  Johnston  v.  Common- 
wealth, 85  Penn.  St.  54,  64  ;  State  v.  Rowe,  98  N.  C.  629  ;  State  v. 
Johnson,  Phil.  (N.  C.)  186;  Nicholls  7;.  State,  68  Wis.  416,  421,422; 
Clarke  v.  Commonwealth,  25  Grat.  908,  913.  The  accomplice  inside 
the  house  is  guilty  of  the  same  offence.  Cornwall's  case,  2  Strange, 
881;  1  Hale,  P.  C.  553  ;  4  Bl.  Com.  227  ;  Rex  v.  Jordan,  7  C.  «fe  P. 
432  ;  Cooper  v.  State,  69  Ga.  761  ;  Ray  v.  State,  66  Ala.  281,  282 ; 
Breese  v.  State,  12  Ohio  St.  146. 

The  argument  for  the  defendants  assumes  that  the  door  was  not  even 
latched,  and  speaks  of  the  defendants  as  having  been  invited  into  the 

1  Part  of  the  opinion  is  omitted.  —  En 


SECT.  IV.]  REX   V.    SKERRIT.  415 

shop.  In  fact,  the  door  would  seem  to  have  been  bolted,  and  if  there 
can  be  said  to  be  any  invitation  to  enter  a  closed  and  bolted  shop  at 
midnight,  the  invitation  does  not  extend  to  thieves  when  let  in  by  their 
accomplices. 


SECTION   IV. 

Principals  in  the  Second  Degree. 

ANONYMOUS. 

Exchequer  Chamber. 
[Reported  Y.  B.  13  Hen.  VII.  10,  pi  7.] 

A  WOMAN  brought  an  appeal  for  the  death  of  her  husband  against 
two,  and  alleged  that  one  of  the  appellees  held  her  husband  and  com- 
manded tlie  other  to  kill  him,  by  reason  of  which  the  other  struck  him 
to  the  heart  so  that  he  died  at  once. 

And  it  was  held  by  all  the  justices  in  the  Exchequer  Chamber  that 
both  are  principals,  because  both  are  parties  to  the  blow.      Quod  nota. 


EEX  V.    SKERRIT. 

Berkshire  Assizes.     1826. 

{Reported  2  C.  <j-  P.  427.] 

The  prisoners  were  jointly  indicted  for  uttering  a  counterfeit  shilling 
having  another  counterfeit  shilling  in  their  possession. 

It  was  proved  that  the  prisoner,  Eliza  Skerrit,  went  into  the  shop  of 
James  George,  and  there  purchased  a  loaf,  for  which  she  tendered  a 
counterfeit  shilling  in  payment;  he  secured  her,  but  no  more  counter, 
feit  money  was  found  on  her.  The  other  prisoner,  who  had  come  with 
her,  and  was  waiting  at  the  shop-door,  then  ran  away,  but  was  imme' 
diately  secured,  and  fourteen  other  bad  shillings  were  found  on  her, 
wrapped  in  gauze  paper. ^ 

Carrington,  for  the  prisoners,  objected,  2dly,  that  the  complete 
offence  was  not  proved  against  either  of  the  prisoners  ;  as  the  one  who 
uttered  the  piece  of  money  had  no  other  counterfeit  coin  in  her  posses- 
sion, and  the  other  who  had  the  coin,  was  not  guilty  of  any  uttering.  It 
might  be  said  that  the  one  who  stayed  outside  the  shop  was  guilty  of 
a  joint  uttering  with  the  other  who  was  in  it ;  like  the  case  of  two 
thieves,  one  inside  the  shop  and  the  other  outside  ;  but  the  case  of  the 

1  Only  so  much  of  the  case  as  discusses  the  joint  uttering  is  given.  — Ed. 


416  COMMONWEALTH    V.    KNAPP.  [CHAP.  VI. 

thieves  differed  from  the  present  in  this  respect,  viz.  that  the  thief  outside 
might  be  there  to  co-operate  b}'  tlie  removal  of  tlie  stolen  property  or 
the  like.  Now  the  prisoner,  Priscilla  Skerrit,  ])y  staying  outside  the 
shop,  could  not  by  possibility  be  considered  as  aiding  her  sister  in  the 
act  of  paying  for  a  loaf  inside  the  shop.  And  in  the  case  of  Rex  v. 
Else,  Russ.  &  Ry.  142,  it  was  held  that  if  one  person  utter  a  bad  piece  of 
money,  having  no  more,  in  conjunction  with  another,  who  had  more  bad 
money  but  who  was  absent  and  did  not  utter,  neither  was  guilty  of  this 
offence  :  however,  in  that  case  the  persons  were  much  further  asunder 
than  the  prisoners  liad  been  in  the  present. 

GaRrow^,  B.  AVith  regard  to  the  second  objection,  I  think  that  the 
two  prisoners  coming  together  to  the  shop,  and  the  one  staying  outside, 
they  must  botli  be  taken  to  be  jointly  guilty  of  the  uttering  ;  and  it  will 
be  for  the  Jury  to  say  whether  the  possession  of  the  remaining  pieces 
of  bad  money  vras  not  joint.  .  .  . 

Verdict,  Guilty. 


COMMONWEALTH    v.    KNAPP. 
Supreme  Judicial  Court  of  Massachusetts.     1830. 

[Reported  9  Pickerin;/,  496  ] 

John  Francis  Knapp  was  indicted  as  principal,  together  with 
Joseph  Jenkins  Knapp  and  George  Crowninshield  as  accessories,  in 
the  murder  of  Joseph  White  of  Salem,  which  was  perpetrated  on  the 
6th  of  April,  1830.  The  indictment  alleged  that  Richard  Crownin- 
shield also  was  a  principal,  and  that  he  had  committed  suicide.  The 
parties  indicted  were  tried  separately.^ 

The  evidence  in  the  case  tended  to  prove  that  Richard  Crowninshield 
alone  entered  the  house  of  White  and  there  perpetrated  the  murder, 
and  that  the  prisoner  was  in  a  street  about  300  feet  distant  from  the 
house,  aiding  and  abetting. 

Putnam,  J.,  delivered  the  opinion  of  the  court.  By  the  most  ancient 
common  law,  as  it  was  generally  understood,  those  persons  only  were 
considered  as  principals  in  murder  who  actually  killed  the  man,  and 
those  who  were  present,  aiding  and  abetting,  were  considered  as  ac- 
cessories. So  that  if  he  who  gave  the  mortal  blow  were  not  convicted, 
he  who  was  present  and  aiding,  being  only  an  accessory,  could  not  be 
put  upon  his  trial.  But  the  law  was  otherwise  settled  in  the  reign  of 
Henry  IV.  It  was  then  adjudged  that  he  who  was  present,  aiding 
and  abetting  him  who  actually  killed,  was  to  be  considered  as  actually 
killing,  as  much  as  if  he  himself  had  given  the  deadly  blow. 

[To  the  jury.]     There   is  no  evidence  that  the   prisoner  gave  the 

1  Part  of  the  case,  not  involving  the  question  of  principal  and  accessory,  is  omitted. 
—  Ed. 


SECT.  IV.]  COMMONWEALTH    V.   KNAPP.  417 

mortal  blows  with  his  own  hand  ;  but  it  is  contended  on  the  part  of 
the  government  that  he  was  present,  aiding  and  abetting  the  perpe- 
trator, at  the  time  when  the  crime  was  committed.  We  are  therefore 
to  consider  what  facts  are  necessary  to  be  proved  to  constitute  him, 
who  is  aiding  and  abetting,  to  be  a  principal  in  the  murder ;  or,  in 
other  words,  what,  in  the  sense  of  the  law,  is  meant  by  being  presefit, 
aiding  and  abetting. 

It  is  laid  down  in  Foster's  Crown  Law,  349,  350,  Discourse  3,  §  4, 
that  "  when  the  law  requireth  the  presence  of  the  accomplice  at  the 
perpetration  of  the  fact,  in  order  to  render  him  a  principal,  it  doth  not 
require  a  strict,  actual,  immediate  presence,  such  a  presence  as  would 
make  him  an  eye  or  ear  witness  of  what  passeth.  Several  persons  set 
out  together,  or  in  small  parties,  upon  one  common  design,  be  it 
murder  or  other  felony,  or  for  any  other  purpose  unlawful  in  itself, 
and  each  taketh  the  part  assigned  him ;  some  to  commit  the  fact, 
others  to  watch  at  proper  distances  and  stations  to  prevent  a  surprise, 
or  to  favor,  if  need  be,  the  escape  of  those  who  are  more  immediately 
engaged.  They  are  all,  provided  the  fact  be  committed,  in  the  e3e  of 
the  law  present  at  it ;  for  it  was  made  a  common  cause  with  them  ; 
each  man  operated  in  his  station  at  one  and  the  same  instant  towards 
the  common  end ;  and  the  part  each  man  took  tended  to  give  counte- 
nance, encouragement,  and  protection  to  the  whole  gang,  and  to  in- 
sure the  success  of  their  common  enterprise."  In  §  5,  —  "  In  order  to 
render  a  person  an  accomplice  and  a  principal  in  felony,  he  must  be 
aiding  and  abetting  at  the  fact,  or  ready  to  afford  assistance  if  neces- 
sary." So,  in  1  Hawkins's  P.  C.  c.  32,  s.  7  (7th  ed.)  being  present  in 
judgment  of  the  laic  is  equivalent  to  being  actually  present,  for,  says 
Hawkins,  "the  hope  of  their  immediate  assistance  encourages  and 
emboldens  the  murderer  to  commit  the  fact,  which  otherwise  pei-haps 
he  would  not  have  dared  to  do,  and  makes  them,  guilty  in  the  same 
degree  [as  principals]  as  if  they  had  actually  stood  by,  with  their 
swords  drawn,  ready  to  second  the  villany."  These  principles  have 
been  fully  recognized  by  the  very  learned  and  distinguished  chief  jus- 
tice of  the  Supreme  Court  of  the  United  States,  in  4  Cranch,  492. 

The  person  charged  as  principal  in  the  second  degree  must  be 
present ;  and  he  must  be  aiding  and  abetting  the  murder.  But  if  the 
abettor,  at  the  time  of  the  commission  of  the  crime,  were  assenting  to 
the  murder,  and  in  a  situation  where  he  might  render  some  aid  to 
the  perpetrator,  ready  to  give  it  if  necessary,  according  to  an  ap- 
pointment or  agreement  with  him  for  that  purpose,  he  would,  in  the 
judgment  of  the  law,  be  present  and  aiding  in  the  commission  of  the 
crime.  It  must  therefore  be  proved  that  the  abettor  was  in  a  situation, 
in  which  he  might  render  his  assistance,  in  some  manner,  to  the  com- 
mission of  the  offence.  It  must  be  proved  that  he  was  in  such  a  situ- 
ation, by  agreement  with  the  perpetrator  of  the  crime,  or  with  his 
previous  knowledge,  consenting  to  the  crime,  and  for  the  purpose  of 
rendering    aid  and  encouragement  in  the  commission  of  it.     It  must 


418  COMMONWEALTH    V.    KNAPP.  [CHAP.  VI. 

also  be  proved  that  he  wtis  aetiialh'  aiding  and  abetting  the  perpe- 
trator at  the  time  of  the  murder.  But  if  the  abettor  were  consenting 
to  the  muider,  and  in  a  situation  in  which  he  might  render  any  aid, 
by  arrangement  with  tlie  perpetrator,  for  the  purpose  of  aiding  and 
assisting  him  in  tlie  murder,  then  it  would  follow  as  a  necessary  legal 
inference,  that  he  was  actuall}"  aiding  and  abetting  at  the  commission 
of  the  crime.  For  the  presence  of  the  abettor  under  such  circum- 
stances must  encourage  and  embolden  the  perpetrator  to  do  the  deed, 
by  giving  him  hopes  of  immediate  assistance  ;  and  tkis  would  in  law 
be  considered  as  actually  aiding  and  abetting  him,  although  no  fur- 
ther assistance  should  be  given.  For  it  is  clear  that  if  a  person  is 
present  aiding  and  consenting  to  a  murder  or  other  felon}',  that  alone 
is  sufficient  to  charge  him  as  a  principal  in  the  crime.  And  we  have 
seen  that  the  presence  by  construction  or  judgment  of  the  law  is  in 
this  respect  equivalent  to  actual  presence. 

We  do  not,  however,  assent  to  the  position  which  has  been  taken  by 
the  counsel  for  the  government,  that  if  it  should  be  proved  that  tlie 
prisoner  conspired  with  otliers  to  procure  the  murder  to  be  committed, 
it  follows,  as  a  legal  presumption,  that  the  prisoner  aided  in  the  actual 
perpetration  of  tlie  crime  unless  he  can  show  the  contrary  to  the  jury. 
The  fact  of  the  conspirac}^  being  pi'oved  against  the  prisoner  is  to  be 
weighed  as  evidence  in  the  case,  having  a  tendency'  to  prove  that  the 
prisoner  aided,  but  it  is  not  in  itself  to  be  taken  as  a  legal  presump- 
tion of  his  having  aided  unless  disproved  by  him.  It  is  a  question  of 
evidence  for  the  consideration  of  the  jurv. 

If,  however,  tlie  jur}'  should  be  of  opinion  that  the  prisoner  was  one 
of  the  conspirators,  and  in  a  situation  in  which  he  might  have  givevi 
some  aid  to  the  perpetrator  at  the  time  of  the  murder,  then  it  would 
follow,  as  a  legal  presumption,  that  he  was  there  to  carry  into  effect 
the  concerted  crime  ;  and  it  would  be  for  the  prisoner  to  rebut  the  pre- 
sumption, by  showing  to  the  jury  that  he  was  there  for  another  pur- 
pose unconnected  with  the  conspirac}'.  We  are  all  of  opinion  that 
these  are  the  principles  of  the  law  applicable  to  the  case  upon  trial.^ 

1  Ace.  Rex  V.  Owen,  1  Moody,  96;  Rex  v.  Dyson,  Russ.  &  Ry.  523  ;  Thomas  v. 
State,  43  Ark.  149  ;  Doan  v.  State,  26  Ind.  495;  State  v.  Douglass,  34  La.  Ann.  523; 
State  V.  Jones,  83  N.  C.  605.  See  Amos  v.  State,  83  Ala.  1.  Conf.  People  v.  Wood- 
ward, 45  Cal.  293;  State  v.  Hildieth,  9  Ired.  440. 

"If  three  thieves  come  to  a  man's  house,  and  one  forces  and  enters  the  house,  and 
the  other  two  stand  outside  in  the  meantime,  they  shall  all  three  be  taken  and  con- 
victed of  this,  whatever  judgment  you  may  think  will  be  passed  on  the  two."  —  Spig- 
ONKL,  J.,  in  Y.  B.  30  &  31  Ed.  I.  p.  108.  —  Ed. 


bECT.  IV.]  BREESE  V.   STATE.  419 


BREESE   V.    STATE. 
Supreme  Court  of  Ohio.     1861. 

[Reported  12  Ohio  State,  146.] 

Peck,  J.*  Did  the  court  err  in  tliat  portion  of  its  charge  to  the  }  ^^^ 
which  is  stated  in  the  bill  of  exceptions  ?  The  charge,  which  is  comeOl 
into  the  statement  of  the  case,  and  which,  on  account  of  its  length,  I 
do  not  propose  to  repeat  here,  was,  substantially,  that  if  the  jury 
should  find,  bej'ond  a  reasonable  doubt,  from  the  testimon}-,  that  the 
defendant  had  agreed  with  others  to  commit  the  burglary,  on  the 
night  on  which  it  was  done,  and  that,  as  a  part  of  said  agreement, 
and  to  facilitate  the  breaking  and  entiy  and  lessen  the  chances  of 
detection,  it  was  agreed  that  the  defendant  should  on  that  night  pro- 
cure or  decoy  the  owner.  Whetstone,  awa}-  from  the  store  in  which  he 
usually  slept,  to  a  part}-,  abouL  a  mile  distant,  and  detain  him  there 
while  the  other  confederates  were  to  break  and  enter  said  store  and 
remove  the  goods,  and  that  both  parties  did,  in  fact,  perform  their 
respective  parts  of  said  agreement,  that  then  the  defendant  was  con- 
structively present  at  the  breaking  and  entiy  by  his  confederates,  and 
might  be 'convicted  as  principal  therein  if  all  the  other  material  allega- 
gations  were  proved  beyond  a  reasonable  doubt. 

We  are  free  to  say  that  this  charge,  if  there  was  evidence  tending  to 
prove  it,  is  unexceptionable. 

"  Any  participation  in  a  general  felonious  plan,  provided  such  par- 
ticipation be  concerted,  and  there  be  a  constructive  presence,  is  enough 
to  make  a  man  principal  in  the  second  degree."  Wharton's  C.  L.  113, 
and  the  case  cited  by  Wharton  to  establish  the  rule  shows  what  is 
meant  b}^  a  "  constructive  presence." 

''  If  several  act  in  concert  to  steal  a  man's  goods,  and  he  is  induced  by 
fraud  to  trust  one  of  them,  in  the  presence  of  the  others,  with  the  pos- 
session of  such  goods,  and  another  of  them  entices  him  away,  that 
the  man  who  has  the  goods  may  carry  them  off,  all  are  guilty  of  the 
felony."     Rex  v.  Standley  and  others,  Russ.  and  Ry.  C.  C.  305. 

The  defendant  was,  by  the  agreement,  not  only  to  procure  Whet- 
stone to  go  to  the  party  "  to  give  his  confederates  greater  security 
from  detection  while  in  the  act  of  breaking  into  the  store,"  but  the 
jury  were  required  to  find,  as  a  part  of  the  supposed  case,  that  the 
defendant  "  kept  him  there  while  his  confederates  were  engaged  in 
breaking  said  store,  and  in  conceahng  the  fruits  of  said  crime  in  pur- 
suance of  said  previous  confederacy." 

The  charge  would  therefore  seem  to  fall  within  the  well-known  rule 
stated  in  Archbold  C.  L.  10,  "  that  persons  are  said  to  be  present, 
who  are  engaged  in  the  same  design  with  the  one  who  actually  com« 

*  Part  of  the  opinion  only  is  given. 


420  ACCESSORIES.  [CHAP.  VI. 

mits  the  offence,  although  not  actually  present  at  the  commission  of 
it,  yet  are  at  such  convenient  distance  as  to  be  able  to  come  to  the 
assistance  of  their  associates  if  required,  or  to  watch  to  prevent  sur- 
prise or  the  like." 

Bishop,  in  section  460,  vol.  i.  of  his  Treatise  upon  Criminal  Law, 
says:  "  If  the  will  of  such  other  one  contributed  to  the  act,  the  test  to 
determine  whether  the  law  deems  him  a  principal  rather  than  an  acces- 
sory is,  whether  he  was  so  near,  or  otherwise  so  situated,  as  to  make 
his  personal  help,  if  requu-ed,  to  any  degree  available." 

The  part  assigned  by  the  agreement  to  the  defendant  —  a  constant 
supervision  over  Whetstone  while  the  bm'glary  was  effected  —  formed 
an  essential  part  of  the  plan  of  the  burglary  agreed  upon,  as  much  so 
as  the  rending  of  the  shutter,  or  the  forcing  of  the  door.  And  the 
defendant,  in  the  case  supposed,  was  constructively  present  at  the 
burglary,  if  Jones  who,  in  the  case  from  Russ.  and  Ry.  siipra,  enticed 
McLaughlin  away,  was  constructively  present  at  the  subsequent  aspor- 
tation of  McLaughlin's  money  by  his  confederates,  Standley  and 
Webster. 

So,  in  Hess  v.  The  State,  5  Ohio  12,  it  is  said :  "  And  in  general,  if 
several  unite  in  one  common  design,  to  do  some  unlawful  act,  and  each 
takes  the  part  assigned  him,  though  all  are  not  actually  present,  yet 
all  are  present  in  the  eye  of  the  law  ; "  citing  Foster,  450,  353  ;  1 
Hale's  P  C.  439 ;  2  Starkie's  Ev.  7.* 


SECTION  V. 

Accessories. 


2  Hawkins  P.  C.  c,  29,  s.  16.  It  seems  to  be  agreed  that  those  who 
by  hire,  command,  counsel,  or  conspiracy,  and  it  seems  to  be  generally 
holden  that  those  who  by  showing  an  express  liking,  approbation,  or 
assent  to  another's  felonious  design  of  committing  a  felony,  abet  and 
encourage  him  to  commit  it,  but  are  so  far  absent  when  he  actually 
commits  it  that  be  could  not  be  encouraged  by  the  hopes  of  any  imme- 
diate help  or  assistance  from  them,  are  all  of  them  accessories  before 
the  fact,  both  to  the  felony  intended  and  to  all  other  felonies  which 
shall  happen  in  and  by  the  execution  of  it,  if  they  do  not  expressly 
retract  and  countermand  their  encouragement  before  it  is  actually 
committed. 

2  Hawkins  P.  C.  c.  29,  ss.  26,  27,  34,  35.  As  to  what  kind  of 
receipt  of  a  felon  will  make  the  receiver  an  accessory  after  the  fact,  it 
seems  agreed   that  generally   any   assistance  whatever  given  to  one 

1  See  State  v.  Poynier,  36  La.  Ann.  572  ,  State  v.  Hamilton,  13  Nev.  386.  —  Ed. 


SECT,  v.]  REGIXA    V.    CLAYTON.  421 

known  to  be  a  felon,  in  order  to  hinder  his  being  apprehended  or  tried 
or  suffering  the  punishment  to  which  he  is  condemned,  is  a  sufficient 
receipt  for  this  purpose,  —  as  where  one  assists  him  with  a  liorse  to 
ride  away  witli,  or  with  money  or  victuals  to  support  him  in  his  escape  ; 
or  where  one  harbors  and  conceals  in  his  house  a  felon  under  pursuit,  by 
reason  whereof  the  pursuers  cannot  find  him  ;  and  much  more,  where 
one  harbors  in  his  house,  and  openly  protects  such  a  felon,  by  reason 
whereof  the  pursuers  dare  not  take  him.^ 

Also  I  take  it  to  be  settled  at  this  day  that  whoever  rescues  a  felon 
from  an  arrest  for  the  felony,  or  voluntarily  suffers  him  to  escape,  is 
an  accessory  to  the  felony. 

It  seems  agreed  that  the  law  hath  such  a  regard  to  that  duty,  love, 
and  tenderness  which  a  wife  owes  to  her  husband  as  not  to  make  her 
an  accessory  to  felony  by  any  receipt  whatsoever  given  to  her  husband. 
Yet  if  she  be  any  way  guilty  of  procuring  her  husband  to  commit  it, 
it  seems  to  make  her  an  accessory  before  the  fact  in  the  same  manner 
as  if  she  had  been  sole.  Also,  it  seems  agreed  that  no  other  relation 
beside  that  of  a  wife  to  her  husband  will  exempt  the  receiver  of  a  felon 
from  being  an  accessory  to  the  felony.  From  whence  it  follows  that 
if  a  master  receive  a  servant;  or  a  servant  a  master,  or  a  brother  a 
brother,  or  even  a  husband  a  wife,  they  are  accessories  in  the  same 
manner  as  if  they  had  been  mere  strangers  to  one  another. 

It  seems  to  be  clearly  agreed  that  a  man  shall  never  be  construed 
an  accessory  to  a  felony,  in  respect  of  the  receipt  of  an  offender,  who 
at  the  time  of  the  receipt  was  not  a  felon,  but  afterwards  becomes 
such  by  matter  subsequent,  —  as  where  one  receives  another  who  has 
wounded  a  person  dangerously,  that  happens  to  die  after  such  receipt.'^ 


REGINA  V.  CLAYTON. 
Shropshike  Assizes.     1843. 

[Reported  1  Carrington  ^  Kirwan,  128.] 

Misdemeanor.  —  The  prisoners  were  indicted  for  a  misdemeanor  In 
having  attempted  to  set  fire  to  a  certain  malt-house,  and  were  jointly 
charged  by  the  indictment  with  so  attempting. 

It  appeared  by  the  evidence  that  the  prisoner  Mary  Mooney  had 
•gone  to  bed  an  hour  and  a  half  before  the  fire  was  discovered,  and 
there  was  every  reason  to  suppose  that  she  was  not  present  at  the  time 
when  the  fire  was  lighted  ;  and  the  evidence,  which  was  entirely  circum- 
stantial, tended  to  show  that  the  prisoner  Clayton  lighted  the  fire  only 
a  few  minutes  before  it  was  discovered.     Declarations  of  the  prisonei 

^  See  Tully  v.  Com.,  11  Bush,  154;  Wren's  Case,  26  Gratt.  952.  —Ed. 
»  See  Harrel  v.  State.  39  Miss.  702.  —  Ed. 


422  COMMONWEALTH    V.    PHILLIPS.  [CHAP.  VI. 

Mary  Mooney  were  proved  which  tended  to  show  that  she  knew  before- 
hand that  the  fire  was  to  take  place. 

J.  G.  Phillimore,  for  the  prisoners,  submitted  that  there  was  no 
case  against  the  prisoner  Mar}'  Mooney  on  this  indictment. 

Greaves.  All  who  take  part  in  a  misdemeanor  are  principals,  and 
whatever  will  make  a  person  an  accessory  before  the  fact  in  a  felony 
makes  him  principal  in  a  misdemeanor. 

Williams,  J.  (in  summing  up).  In  misdemeanors  and  in  treason, 
all  who  take  part  in  the  crime  are  principals;  and  in  this  case  it  is  not 
necessary  to  prove  that  the  prisoner  Mary  Mooney  was  present  at  the 
time  when  the  prisoner  Clayton  attempted  to  set  fire  to  the  malt-house  ; 
and  if  you  are  satisfied  that  she  counselled  and  encouraged  Clayton  to 
set  fire  to  the  malt-house,  she  may  be  convicted  upon  this  indictment.^ 

Verdict,  Not  guilty. 


REGINA  V.  BROWN. 
Bristol  Assizes.      1878. 

[Reported  14  Cr-x  C.  C.  144] 

Frederick  Brown  was  indicted  for  murder,  his  wife  being  also 
indicted  as  an  accessory  before  tlie  fact.  It  was  proved  that  the  blow, 
which  proved  fatal,  was  struck  within  a  few  feet  of  where  the  wife  was 
standing. 

Lord  Coleridge,  C.  J.,  directed  the  acquittal  of  the  female  prisoner, 
pointing  out  that  she  should  have  been  indicted  as  a  principal  if  any- 
thing. An  accessory  before  the  fact  must  be  absent  at  the  time  when 
the  crime  is  committed,  and  the  act  must  be  done  in  consequence  of 
some  counsel  or  procurement  of  his. 


COMMONWEALTH  v.  PHILLIPS. 
Supreme  Judicial  Court  of  Massachusetts.     1820. 

[Reported  16  Massachusetts,  423. J 

Indictment  at  the  last  March  term  in  this  county,  charging  one 
Thomas  Daniels  as  principal,  and  tlie  defendant  as  accessory  before 
the  fact,  in  burglary.  The  death  of  Daniels  was  alleged  in  the  indict- 
ment, and  the  question  was  whether  the  prisoner  Phillips  could  lawfully 
be  put  upon  his  trial.^ 

'  Ace.  Lasington's  Case,  Cro.  Eliz.  750  (petty  larceny);  Bootli's  Case,  Moore,  666 
rforgery  at  common  law);  Rex  v.  Jackson,  1  Lev.  124  (perjury);  U.  S.  v.  Gooding,  12 
Wlieat  460  (fitting  out  vessel  for  slave  trade);  Sanders  v.  State,  18  Ark.  198  (obstruct- 
ing highway);  Stevens  v.  People,  67  111.  587  (keeping  gaming-house).  —  Ed. 

*  Arguments  of  counsel  are  omitted. 


SECT,  v.]  STARIN  V.   PEOPLE.  423 

Parker,  C.  J.,  stated  that  the  justices  had  carefully  examined  the 
books  upon  the  subject,  and  were  unanimously  of  oi)inion  that  by  the 
common  law  an  accessory  cannot  be  put  on  his  trial,  but  by  his  own 
consent,  until  the  conviction  of  the  principal.  The  reason  of  this  rule 
is  very  plain.  If  there  is  no  principal  there  can  be  no  accessory,  and 
the  law  presumes  no  one  guilty  until  conviction.  Statutes  have  made 
a  difference  as  to  some  lesser  species  of  offences,  but  do  not  touch  the 
principle  in  capital  cases.  Our  only  doubt  arose  from  the  peculiar  cir- 
cumstance  in  this  case,  that  the  person  charged  as  principal  is  dead, 
and  can  never  be  tried.  If  he  were  alive  and  on  trial,  it  is  possible 
he  might  establish  his  innocence,  strong  as  the  evidence  has  appeared 
in  support  of  his  guilt.  In  such  case  the  prisoner  could  not  be  found 
guilty,  for  he  could  not  have  been  accessory  to  the  commission  of  the 
crime  as  charged.  The  trial  might  have  been  stopped  at  the  com- 
mencement of  it  had  our  minds  been  then  free  from  all  doubt.  But 
us  the  prisoner  has  been  put  on  his  trial,  he  has  a  right  to  a  verdict. 

The  jury  accordingly,  under  the  direction  of  the  court,  immediately 
returned  a  verdict  of  acquittal,  and  the  prisoner  was  discharged  of  this 
indictment.' 


STARIN   V.    PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  45  New   York,  333.  | 

Church,  C.  J.^  The  plaintiff  in  error  was  indicted  as  accessory 
before  the  fact  to  the  crime  of  burglary  in  the  first  degree,  committed 
by  four  principals  named  in  the  indictment.  At  the  Montgomery  Oyer 
and  Terminer,  held  on  the  13th  day  of  May,  1867,  the  prisoner  hav- 
ing been  arraigned  and  plead  nol  guilty  to  the  indictment,  the  district 
attorney  moved  the  trial  of  the  prisoner,  who,  by  his  counsel,  objected 
to  proceeding  with  the  trial  until  after  the  conviction  of  all  the  princi- 
pals named  in  the  indictment.  The  district  attorney  then  admitted  that 
but  one  of  the  principals  had  been  convicted,  that  one  other  was  then 
in  jail,  and  the  other  two  had  not  been  arrested.  The  objection  was 
then  overruled,  and  the  decision  excepted  to. 

Several  other  objections  were  raised  and  decided,  but  one  of  which 
it  is  necessary  to  notice,  and  as  to  that  the  record  is  as  follows :  The 
prisoner,  by  his  counsel,  then  objected  to  being  tried  as  accessory  to 
any  other  principal  than  the  one  who  was  convicted  ;  the  court  over- 
ruled the  objection,  and  the  prisoner's  counsel  then  and  there  duly 
excepted. 

'  See  ace.  U.  S.  v.  Crane,  4  McLean.  317;  Simmons  «.  State,  4  Ga.  465;  AVhite- 
head  v.  State,  4  Humph.  278  :  State  o.  Pybass,  4  Humph.  442.  See  Hatchett  v.  Com., 
75  Va.  925;  OgJen  i.  State.  12  Wis.  532.  —  Ed, 

^  Part  of  the  opinion  only  is  given. 


424  STAKIN    V.  PEOPLE.  [CHAP.  VI. 

The  jury  were  then  impannelled,  and  the  trial  proceeded.  If  this 
exception  is  available  to  the  prisoner,  it  is  fatal  to  the  conviction  and 
judgment.  An  accessory  may  be  tried  jointly  with  the  principal,  but  the 
jury  must  first  agree  upon  the  guilt  of  the  principal,  while  an  acquittal 
of  the  principal  necessarily  acquits  the  accessory.  Wharton's  Crim. 
Law,  §  138.  If  the  accessory  is  not  tried  with  the  principal,  he  cannot 
be  tried  until  the  principal  has  been  tried  and  convicted.  People  v. 
Bacon,  1  Park  R.,  246.  Formerly,  if  a  man  was  indicted  as  accessory 
in  the  same  crime  to  two  or  more  persons,  he  could  not  have  been 
arraigned  until  all  the  principals  were  convicted  and  attainted.  Hale's 
Pleas  of  the  Crown,  623,  chap.  47.  And  in  order  to  try  an  accessory, 
when  only  one  of  several  principals  had  been  convicted,  it  was  necessary 
to  indict  and  arraign  him  as  accessory  to  that  one  only.     Id. 

But  the  modern  decisions  have  somewhat  modified  this  rule,  and  the 
weight  of  authority  now  is  that  an  accessory  may  be  tried  and  convicted 
when  one  only  of  several  principals  named  in  the  indictment  has  been 
convicted.  1  Russell  on  Crimes,  38;  Bishop's  Crim.  Law,  §  611; 
Commonwealth  v.  Knapp,  10  Pick.  477. 

But  it  is  well  settled  that  in  such  a  case  the  accessory  must  be 
tried  and  convicted  as  accessory  to  the  convicted  principal  only,  in  the 
same  manner  as  though  the  convicted  principal  only  was  named  in  the 
indictment.  The  authorities  are  uniform  on  this  subject,  and  I  have 
been  unable  to  find  any  decision  against  this  position.  Strops  v.  Com., 
7  Serg.  &  R.  491  ;  3  Greenl.  Ev.  §  52  ;  People  v.  Bacon,  1  Park.  246  ; 
1  Bishop's  Crim.  Law,  468. 

This  necessarily  results  from  the  rule  that  the  guilt  of  the  principal 
can  only  be  shown  by  a  judicial  trial  and  conviction,  and  even  then 
it  is  not  conclusive  against  the  accessory.  10  Pick,  supra.  The  as- 
sociation of  unconvicted  principals  with  a  convicted  principal  in  the 
indictment  does  not  authorize  the  trial  of  an  accessory  to  any  but  the 
one  convicted,  any  more  than  it  would  if  those  not  convicted  had  not 
been  named.  The  decision  of  the  court,  therefore,  overruling  the 
objection  of  the  prisoner  to  being  tried  as  accessory  to  any  but  the 
convicted  principal,  was  clearly  erroneous. 

Mass.  R.  L.  ch.  215,  Sects.  3,  7.  Whoever  counsels,  hires,  or  other- 
wise procures  a  felon}-  to  be  committed,  ma}-  be  indicted  and  convicted 
as  an  accessory  before  the  fact,  either  with  the  principal  felon  or  after 
his  conviction ;  or  may  be  indicted  and  convicted  of  a  substantive  felon}-, 
whether  the  principal  felon  has  or  has  not  been  convicted,  or  is  or  is 
not  amenable  to  justice. 

An  accessory  to  a  felony  after  the  fact  may  be  indicted,  convicted, 
and  punished,  whether  the  principal  felon  has  or  has  not  been  previously 
convicted,  or  is  or  is  not  amenable  to  justice. 

Penal  Code  of  New  York,  §§  29,  32.  A  person  concerned  in  the 
commission  of  a  crime,  whether  he  directly  commits  the  act  constituting 


SECT.  VI.]  RULOFF   V.   PEOPLE.  425 

the  offence,  or  aids  and  abets  in  its  commission,  and  whether  present 
or  absent;  and  a  person  who  directly  or  indirectly  counsels,  commands, 
induces,  or  procures  another  to  commit  a  crime,  is  a  principal. 

An  accessory  to  a  felony  may  be  indicted,  tried,  and  convicted, 
whether  the  principal  felon  has  or  has  not  been  pi-eviously  convicted, 
or  is  or  is  not  amenable  to  justice,  and  although  the  principal  has  been 
pardoned  or  otherwise  discharged  after  conviction. 


SECTION   VI. 

Acts  done  in  pursuance  of  a  common  design. 

ASHTON'S   CASE. 
King's  Bench.     1698. 

[Reported  12  Modern,  256.] 

Holt,  C.  J.  Two,  three,  or  more  are  doing  an  unlawful  act,  as 
abusing  the  passers-by  in  a  street  or  highway,  if  one  of  them  kill  a 
passer-by,  it  is  murder  in  all ;  and  whatever  mischief  one  does,  they 
are  all  guilty  of  it ;  and  it  is  lawful  for  any  person  to  attack  and  suppress 
them,  and  command  the  king's  peace  ;  and  such  attempt  to  suppress 
is  not  a  sufficient  provocation  to  make  killing  manslaughter,  or  son 
assault  demesne  a  good  plea  in  trespass  against  them.' 


RULOFF   V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1871. 

[Reported  45  Neiv  Yoi-lc,  213.] 

Allen,  J.^     The  jury  have,  by  their  verdict,  found  that  the  horaicido 
was  committed  either  by  the  accused  in  person  or  by  some  one  acting 
in  concert  with  him  in  the  commission  of  a  felony,  and  in  the  prosecu 
tion  and  furtherance  of  a  common  purpose  and  design. 

It  must  be  assumed,  from  the  finding  of  the  jur}',  that  the  prisonei 
was  one  of  the  three  persons  who  burglariously  entered  the  store  on  the 
night  of  the  homicide;  that  Merrick  was  killed  by  one  of  the  burglars, 
in  pursuance  of  the  common  intent  of  all ;  and  that  the  accused  either 
fired  the  shot  which  caused  the  death,  or  was  present,  aiding  and  abet- 
ting his  confederates  in  the  commission  of  the  act.  The  presumption 
from  the  evidence,  assuming  that  the  witnesses  and  their  statements 

1  See  Reg.  v.  Jackson,  7  Cox  C.  C.  357  ;  Reg.  v.  Salmon,  14  Cox  C.  C.  494, 
supra.  —  Ed. 

*  Part  of  the  opinion  only  is  given. 


426  KULOFF   V.    PEOPLE.  [CHAP.  VI. 

are  credible,  as  the  jury  seem  to  have  believed,  is,  that  the  accused, 
in  person,  committed  the  homicide;  and  it  is  not  improbable  that,  had 
the  jury  been  left  to  pronounce  upon  his  guilt  or  innocence  upon  that 
theory  alone,  without  the  complications  resulting  from  the  submission 
of  the  questions  touching  his  responsibility  for  the  acts  of  any  other 
by  whom  the  deed  might  have  been  perpetrated,  the  result  would  have 
been  the  same.  There  were  but  three  pei'sons,  other  than  the  deceased 
and  his  fellow-clerk,  present.  One  of  these  was  disabled  and  lying 
upon  the  floor  seriously  wounded,  and  the  other  was  in  the  grasp  of 
Merrick,  the  deceased,  and  was  also  wounded  and  injured.  The  third 
came  up  the  stairs  and  fired  the  pistol  which  caused  the  death,  and  he 
alone  of  the  three  was  uninjured  and  unwounded.  The  accused,  when 
arrested  a  day  or  two  after  the  occurrence,  bore  no  mark  of  injury  upon 
his  person,  and  could  not  have  been  one  of  the  two  so  badly  injured 
in  the  encounter  with  the  clerks.  It  follows  that  he  was  either  not 
present,  and  has,  therefore,  been  wrongfully  convicted,  or  his  hand  dis- 
charged the  pistol  which  caused  the  death  of  Merrick.  But  the  jury 
may^  have  taken  other  views  of  the  evidence  under  the  charge,  so  that 
the  questions  made  upon  the  trial  and  presented  by  the  writ  of  error, 
upon  the  rules  governing  the  liability  of  one  to  answer  criminally  for 
the  acts  of  others,  cannot  be  passed  by  without  consideration. 

If  the  homicide  was  committed  by  one  of  several  persons,  in  the 
prosecution  of  an  unlawful  purpose  or  common  design,  in  which  the 
combining  parties  had  united,  and  for  the  effecting  whereof  they  had 
assembled,  all  were  liable  to  answer  criminally  for  the  act,  and,  if  the 
homicide  was  murder,  all  were  guilty  of  murder,  assuming  that  it  was 
within  the  common  purpose.  All  present  at  the  time  of  committing 
an  offence  are  principals,  although  only  one  acts,  if  they  are  confeder- 
ates, and  engaged  in  a  common  design,  of  which  the  offence  is  a  part. 
1  Russ.  on  Crimes,  27,  29.  The  several  persons  concerned  in  this 
offence  were  assembled  for  the  commission  of  a  felony,  and  were 
engaged  in  the  actual  perpetration  of  the  offence ',  and  the  homicide 
was  committed  upon  one  who  was  opposing  them  in  tlie  act,  and  in 
rescuing  and  aiding  the  confederates  to  escape.  To  this  conclusion  the 
jury  must  have  come. 

If  there  was  a  general  resolution  against  all  opposers,  and  to  resist 
to  the  utmost  all  attempts  to  detain  or  hold  in  custody  any  of  the 
parties,  all  the  persons  present  when  the  homicide  was  committed  were 
equally  guilty  with  him  who  fired  the  fatal  shot.  1  Russ.  on  Crimes, 
29,  30.  This  general  resolution  of  the  confederates  need  not  be  proved 
by  direct  evidence.  It  may  be  inferred  from  circumstances ;  by  the 
number,  aims,  and  behavior  of  the  parties  at  or  before  the  scene  ol 
action.  Id. ;  Fost.  353,  354  ;  2  Hawk.  P.  C.  ch.  29,  s.  8  ;  Tyler's  Case, 
8  C.  &  P.,  616.  There  was  enough  in  this  case  to  authorize  the  sub- 
mission of  the  question  to  the  jury.  An  express  resolution  against  all 
opposers  can  very  seldom  be  proved  by  direct  evidence  •,  but  here  every 
circumstance  tended  strongly  to  prove  it. 


SECT.  VI.J  STATE    V.  ALLEN.  427 

Some  of  the  confederates,  and  perhaps  all,  were  armed  ;  they  actually 
did  resist  all  opposition  with  such  weapons  as  they  could  successfully 
use.  When  one  was  detained,  being  overcome  by  the  opposition,  the 
others  returned  at  the  call  of  their  comrade,  and  the  only  one  in 
condition  to  do  so,  deliberately  shot  Merrick,  who  was  preventing  the 
escape  of  one  of  the  confederates,  and  was  cautioned  by  that  confeder- 
ate, when  about  to  shoot,  not  to  shoot  him.  The  jury  were  authorized 
to  infer  that  this  act  was  within  the  general  purpose  of  the  confederates. 
They  may  have  desisted  from  their  larcenous  attempts,  and  yet  the  full 
purpose  of  the  combination  not  have  been  carried  out  so  long  as  oue  of 
the  party  was  detained  and  held  a  prisoner.^ 


STATE  V.  ALLEN. 
Supreme  Court  of  Errors  of  Connecticut.     1879. 

[Reported  47  Cotwecticuc,  121  ] 

Beardsley,  J.^  The  court  charged  the  jury  as  follows:  "If  the 
jury  shall  find  that  Hamlin  and  Allen,  at  some  time  previous  to  the 
homicide,  made  up  their  minds  in  concert  to  break  the  State  prison 
and  escape  therefrom  at  all  hazard,  and  knowing  that  the  enterprise 
would  be  a  dangerous  one  and  expose  them  to  be  killed  by  the  armed 
night-watchman  of  the  prison  should  they  be  discovered  in  making  the 
attempt,  wilfully,  deliberately,  and  premeditatedly  determined  to  arm 
themselves  with  deadly  weapons,  and  kill  whatever  watchman  should 
oppose  them  in  their  attempt;  and  if  the  jury  should  further  find  that 
in  pursuance  of  such  design  they  armed  themselves  with  loaded  revol- 
vers to  carry  their  original  purpose  into  execution,  and  while  engaged 
in  efforts  to  escape  from  the  prison  were  discovered  by  the  watchman 
Shipman  (the  deceased),  and  in  the  scuffle  which  ensued  he  was  wilfully 
killed  by  Hamlin  or  Allen  while  they  were  acting  in  concert  and  m 
pursuance  of  their  original  purpose  so  to  do  in  just  such  an  emergency 
as  they  now  found  themselves  in,  —  then  Hamlin  and  Allen  are  both 
guilty  of  murder  in  the  first  degree.  And  in  the  opinion  of  the  coui* 
Allen  would  be  guilty  of  murder  in  the  first  degree  if,  in  the  state  ol 
things  just  described,  he  in  fact  abandoned,  just  before  the  fatal  shot 
was  fired  by  Hamlin,  all  further  attempt  to  escape  from  the  prison,  and 
the  infliction  of  further  violence  upon  the  person  of  Shipman,  without 
informing  Hamlin  by  word  or  deed  that  he  had  so  done,  and  Hamlin, 
ignorant  of  the  fact,  shortly  after  fired  the  fatal  shot,  in  pursuance  of 
and  in  accordance  with  the  purpose  of  the  parties  down  to  the  time  of 
the  abandonment." 

1  Ace.  State  v.  Barrett,  40  Minn.  77  ;  State  v,  Davis,  87  N.  C.  514  ;  State  v. 
Johnson,  7  Or.  210.—  Ed. 

2  Part  of  the  opinion  only  is  given. 


428 


STATE   V.   ALLEN.  [CHAP.  VI. 


We  do  not  think  that  the  objection  made  by  the  defence  to  this  part 
of  the  charge  is  well  founded.  Under  such  circumstances  Allen's  so- 
called  abandonment  would  be  but  an  operation  of  the  mind,  —  a  secret 
change  of  purpose.  Doing  nothing  by  word  or  deed  to  inform  his  co- 
conspirator of  such  change  of  purpose,  the  reasonable  inference  would 
be  that  he  did  not  intend  to  inform  him  of  it,  and  thus  he  would  be 
intentionally  encouraging  and  stimulating  him  to' the  commission  of  the 
homicide  by  his  supposed  co-operation  with  him.  Such  intent  not  to 
inform  Hamlin  of  his  change  of  purpose  would,  under  the  circumstances, 
be  decisive  of  his  guilt. 

But  the  charge  proceeds:  "In  other  words,  if  during  the  fatal  en- 
counter with  deadly  weapons,  in  the  state  of  things  just  described, 
Allen  suddenly  abandoned  Hamlin,  abandoned  the  enterprise  and  went 
to  his  cell,  without  saying  a  word  to  Hamlin  to  the  effect  that  he  had 
abandoned  the  enterprise,  and  Hamlin,  supposing  that  he  was  still 
acting  with  him  and  that  he  had  gone  to  his  cell  for  an  instrument  to 
carry  on  the  encounter,  fired  the  fatal  shot,  his  abandonment  under 
such  circumstances  would  be  of  no  importance.  A  man  cannot  abandon 
another  under  such  circumstances  and  escape  the  consequences  of  the 
aid  he  has  rendered  up  to  the  time  of  the  abandonment." 

A  majority  of  the  court  think  that  the  jury  may  have  been  misled  by 
this  part  of  the  charge,  and  that  therefore,  especially  in  view  of  the 
grave  issues  involved  in  the  case,  a  new  trial  should  be  granted. 

If  Allen  did  in  fact  before  the  homicide  withdraw  from  the  conspir- 
acy, abandon  the  attempt  to  escape,  and  with  the  knowledge  of  Hamlin 
leave  and  go  to  his  cell,  Hamlin's  misconstruction  of  his  purpose  in 
leaving  did  not  necessarily  make  his  conduct  of  no  importance. 

Until  the  fatal  shot  there  was  the  locus  penitentim.  To  avail  himself 
of  it  Allen  must  indeed  have  informed  Hamlin  of  his  change  of  pur- 
pose, but  such  information  might  be  by  words  or  acts ;  and  if  with  the 
intention  of  notifying  Hamlin  of  his  withdrawal  from  the  conspiracy  he 
did  acts  which  should  have  been  effectual  for  that  purpose,  but  which 
did  not  produce  upon  the  mind  of  Hamlin  the  effect  which  he  intended, 
and  which  they  naturally  should  have  produced,  such  acts  were  proper 
for  the  jury  to  consider  in  determining  the  relation  of  Allen  to  the  crime 
which  was  afterwards  committed. 

Allen's  act  of  leaving  and  going  to  his  cell,  if  he  did  so,  had  some 
significance  in  connection  with  the  question  of  intention  and  notice, 
and  was  therefore  proper  for  the  consideration  of  the  jury.  How  much 
weight  was  to  be  given  to  it  would  depend  upon  circumstances,  such 
as  the  situation  of  the  parties  and  the  opportunity  for  verbal  or  other 
notice. 

A  new  trial  is  advised. 


SECT.  VI.1  STATE  V.    LUCAS.  429 


STATE    V.    LUCAS. 
Supreme  Court  of  Iowa.     1880 

[Reporced  55  Iowa,  321.1 

Daf,  J.  — R.  G.  Edwards,  on  behalf  of  the  State,  testified  in  sub- 
stance  that  he  was  nlglit  watchman  for  Hemmingway  &  Barclay's  mill, 
at  Lansing;  that  on  the  night  of  August  24,  1879,  the  defendant  and 
Wood  assaulted  and  knocked  him  down,  tied  his  hands  and  feet  and 
carried  him  into  the  mill,  and  that  while  the  defendant  went  after  a 
sledge  to  open  the  safe  in  the  mill,  Wood  took  three  dollars  in  silver 
from  his  pocket.  The  evidence  shows  that  the  safe  was  blown  open 
on  the  same  night.  The  defendant,  on  his  own  behalf,  testified  that 
he  had  nothing  to  do  with  robbing  Edwards,  and  was  not  at  the  mill 
at  all ,  that  he  rowed  Wood  and  Harris  in  a  skiflf,  from  La  Crosse  to 
Lansing,  and  landed  near  the  mill  about  nine  o'clock  on  the  night  of 
the  robbery;  that  Wood  and  Harris  went  up  town  and  left  him  to 
watch  the  boat;  that  afterward  they  came  down  to  the  boat  in  a  hurry 
and  directed  him  to  row  over  to  Wisconsin  ;  that  on  the  way  he  saw 
them  dividing  some  silver  money;  that  when  they  reached  the  Wis- 
consin shore  they  sunk  the  boat;  that  on  the  way  to  La  Crosse  Wood 
told  him  all  that  ha[)pencd,  and  gave  him  two  revolvers  to  carry. 

The  court  instructed  the  jury  as  follows ;  *'  If  you  believe  from  all 
the  evidence  that  the  defendant  did  not  leave  the  boat  after  the  arrival 
at  Lansing ;  yet  if  you  also  believe  that  he  had  knowledge  of  the  intent 
of  his  associates  to  commit  crime,  either  of  robbery  of  the  man 
Edwards,  or  of  robbing  the  safe  in  Barclay  and  Hemmingway's  mill, 
or  any  other  crime,  and  rowed  them  ashore  for  such  purpose,  and 
waited  in  the  boat  for  them  during  their  absence  in  committing  the 
crime,  then  you  will  find  the  defendant  guilty." 

The  doctrine  of  this  instruction  is  that  if  the  defendant  knew  of  the 
intent  of  his  associates  to  rob  the  safe  in  Barclay  &  Hemmingway's 
mill,  and  rowed  them  ashore  for  that  purpose  and  awaited  their  return 
he  is  guilty  of  the  robbery  of  Edwards.  This  doctrine  is  not  correct. 
It  is  true  the  accessory  is  liable  for  all  that  ensues  upon  the  execution 
of  the  unlawful  act  contemplated  ;  as,  if  A  commanded  B  tO  beat  C, 
and  he  beats  him  so  that  he  dies,  A  is  accessory  to  the  murder.  So  if 
A  commanded  B  to  burn  the  house  of  C,  and  in  doing  so  the  house  of 
D  is  also  burnt,  A  is  accessory  to  the  burning  of  D's  house.  So,  in 
this  case,  if  Lucas  had  knowledge  of  the  intention  to  rob  the  safe,  and 
aided  and  abetted  his  associates  in  the  commission  of  that  offence,  and 
if,  in  furthering  that  purpose,  a  fatal  assault  had  been  made  upon 
Edwards,  the  defendant  would  have  been  accessory  to  the  murder. 

But.  if  the  accessory  order  or  advise  one  crime,  and  the  principal 
intentionally  commit  another ;  as,  for  instance,  to  burn  a  house,  and 
instead  of  that  he  commit  a  larceny  ;  or,  to  commit  a  crime  against  A, 


430  REX   V.    HAWKINS.  [CHAP.  VI. 

and  instead  of  so  doing  he  intentionally  commit  the  same  crime  against 
B,  the  accessory  will  not  be  answerable.  See  1  Wharton's  Criminal 
Law,  section  134,  and  authorities  cited.  It  follows  that  the  defendant 
cannot  be  convicted  of  a  robbery  of  Edwards,  from  the  mere  fact  that 
he  abetted  his  associates  in  the  robbery  of  Barclay  &  Hemmingway's 
safe.  If  the  intention  of  Lucas  was  to  abet,  and  share  in  the  proceeds 
of,  any  robbery  that  his  associates  might  commit,  a  different  rule 
would  apply.  But  this  is  not  the  thought  of  the  instruction  under 
consideration.  Our  view  of  the  law  governing  this  case  is  sufficiently 
indibated  by  the  foregoing,  without  noticing  consecutively  the  other 
errors  assigned  and  argued.  ji 


REX   V.  HAWKINS. 

Worcester  Assizes.     1828. 
[Reported  3  C.  cj-  P.  392.] 

The  indictment  charged  the  prisoners,  and  a  person  named  Williams 
(who  was  not  in  custod}'),  with  robbing  William  Tucker. 

It  appeared  that  the  prisoners  were  out  poaching  in  the  night  in 
company  with  Williams,  and  that  Tucker,  who  was  the  game-keeper  of 
Mr.  West,  met  them  as  he  was  going  his  rounds,  when  the  whole  part}' 
set  upon  him  and  beat  him  till  he  was  senseless ;  and  that,  on  his  re- 
covering, he  missed  his  pocket-book  and  mone}',  and  his  gun.  How- 
ever, to  connect  some  of  the  prisoners  with  the  offence,  an  accomplice 
was  called,  who  stated  that  they  all  beat  the  game-keeper,  and  left  him 
lying  on  the  ground  ;  and  that,  after  they  had  gone  some  little  distance, 
Williams  i-eturned  and  robbed  him. 

Park,  J.  It  appears  to  me  that  WiUiaras  is  alone  guilty  of  this 
robbery.  It  appears  that  there  was  no  common  intent  to  steal  the 
keeper's  property.  The}'  went  out  with  a  common  intent  to  kill  game, 
and  perhaps  to  resist  the  keepers  ;  but  the  whole  intention  of  stealing 
the  property  is  confined  to  Williams  alone.  They  must  be  acquitted  of 
the  robbery.  Verdict,  Not  Guilty. 

1  See  Lamb  v.  People,  96  111.  73  ;  People  v.  Knapp,  26  Mich.  112;  Mercersmith  v. 
State,  8  Tex.  App.  211  ;  Watts  v.  State,  5  W.  Va.  532. —  Ed. 


SECT.  VI.]  PEOPLE  V.    KEEFER.  431 

PEOPLE  V.  KEEPER. 

Supreme  Court  of  California.     1884. 

[Reported  65  Cal.  232]. 

McKiNSTRY,  J.^  Counsel  for  defendant  asked  the  court  to  charge 
the  jury :  — 

' '  If  you  believe  from  the  evidence  that  the  defendant  James  Keefer 
was  not  present  when  the  Chinaman  Lee  Yuen  was  killed  by  Chapman, 
and  did  not  aid  and  abet  in  the  killing,  and  that  defendant,  at  the  time 
or  prior  to  the  killing,  had  not  conspired  with  Chapman  to  commit  the 
act,  and  that  he  had  not  advised  and  encouraged  Chapman  therein,  and 
that  the  killing  was  not  done  in  pursuance  of  any  conspiracy  between 
this  defendant  and  Chapman  to  rob  said  Chinaman,  and  that  this  de- 
fendant only  assisted  in  throwing  the  dead  body  of  the  Chinaman  into 
the  creek,  then  you  are  instructed  that,  under  the  indictment,  you  must 
find  the  defendant  not  guilty." 

It  is  to  be  regretted  that  the  foregoing  instruction  was  not  given  to 
the  jury.  Of  course,  if  defendant  had  done  no  act  which  made  him 
responsible  for  the  murder,  the  mere  fact  that  he  aided  in  concealing 
the  dead  body  would  render  him  liable  only  as  accessory  after  the 
fact,— an  offence  of  which  he  could  not  be  found  guilty  under  an  in- 
dictment for  murder.  However  incredible  the  testimony  of  defendant, 
he  was  undoubtedly  entitled  to  an  instruction  based  upon  the  hypothesis 
that  his  testimony  was  entirelv  true. 

Assuming  the  testimony  of  defendant  to  be  true,  there  was  evidenct 
tending  to  show  that  no  robbery  was  committed  or  attempted.  In 
robbery,  as  in  larceny,  it  must  appear  that  the  goods  were  taken  miimo 
furandi  ;  and  there  was  evidence  tending  to  prove  that  his  propertj- 
was  not  taken  from  deceased  lucH  causa,  or  with  intent  to  deprive  liim 
of  it  permanently.  So  also  there  was  evidence  tending  to  prove  that 
defendant  was  not  personally  present  at  the  killing,  and  that  the  killing 
was  not  done  in  pursuance  of  any  agreement  or  understanding  to  which 
defendant  was  a  party,  but  that  it  was  done  by  Chapman  without  the 
knowledge,  assent,  or  connivance  of  the  defendant. 

The  testimony  of  defendant  was  to  the  effect  that  he  did  not  advise 
or  encourage  Chapman  to  follow  and  tie  the  deceased.  But  even  if  we 
could  be  supposed  to  be  justified  in  deciding  the  fact,  in  holding  that 
his  conduct  conclusively  proved  —  notwithstanding  his  testimony  to 
the  contrary  —  that  he  did  encourage  Chapman  in  his  purpose  to  follow 
and  tie  the  deceased,  such  encouragement  would  not,  of  itself,  make 
him  accessory  to  the  killing.  An  accessory  before  tlie  fact  to  a  robbery 
(or  any  other  of  the  felonies  mentioned  in  section  198  of  the  Penal 
Code),   although  not  present  when  the  felony  is   perpetrated  or  at' 

1  Part  of  the  opiaion  is  omitted.  —  Eu. 


432  SPIES  V.  PEOPLE.  [chap.  VI. 

tempted,  is  guilt}'  of  a  murder  committed  in  the  perpetration  or  attempt 
to  perpetrate  tlie  felony.  People  v.  Majors,  April  1,  1884.  This  is  by 
reason  of  the  statute,  and  because  the  law  superadds  the  intent  to  kill 
to  the  original  felonious  intent.  People  v.  Doyell,  48  Cal.  94.  One 
who  has  onl}'  advised  or  encouraged  a  misdemeanor,  however,  is  not 
necessarily'  responsible  for  a  murder  committed  by  his  co-conspirator, 
not  in  furtherance,  but  independent  of  the  common  design.  1  Whart. 
Crim.  Law,  §  229  and  note. 

In  the  case  at  bar,  if  defendant  simpl}'  encouraged  the  t^'ing  of  the 
deceased,  — a  misdemeanor  whicli  did  not  and  probably  could  not  cause 
death  or  any  serious  injury,  —  as  the  killing  bj^  Chapman  was  neither 
necessarily  nor  probabl}'  involved  in  the  battery  or  false  imprisonment, 
nor  incidental  to  it,  but  was  an  independent  and  malicious  act  with 
which  defendant  had  no  connection,  the  jury  were  not  authorized  to 
find  defendant  guilty  of  the  murder,  or  of  manslaughter.  If  the  de- 
ceased had  been  strangled  b}^  the  cords  with  which  he  had  been  care- 
lessly or  recklessly  bound  by  Chapman,  or  had  died  in  consequence  of 
exposure  to  the  elements  while  tied,  defendant  might  have  been  held 
liable.  But,  if  the  testimony  of  defendant  was  true,  —  and,  as  we  have 
said,  he  was  entitled  to  an  instruction  based  upon  the  assumption  that 
the  facts  were  as  he  stated  them  to  be, — the  killing  of  deceased  was 
an  independent  act  of  Chapman,  neither  aided,  advised,  nor  encouraged 
by  him,  and  not  involved  in  nor  incidental  to  an}'  act  by  him  aided, 
advised,  or  encouraged.     The  court  erred  in  refusing  the  instruction. 


SPIES    V.    PEOPLE. 

Supreme  Court  of  Illinois.     1887. 

[Reported  122  ///.  1.] 

Magruder,  J.,^  delivered  the  opinion  of  the  Court: 

This  case  comes  before  us  by  writ  of  error  to  the  Criminal  Court  of 
Cook  county.     The  writ  has  been  made  a  supersedeas. 

Plaintiffs  in  error  were  tried  in  the  summer  of  1886  for  the  murder 
of  Matthias  J.  Degan,  on  Ma}'  4,  1886,  in  the  city  of  Chicago,  Cook 
county,  Illinois.  On  August  20,  1886,  the  jury  returned  a  verdict 
finding  the  defendants,  August  Spies,  Michael  Schwab,  Samuel  Fielden, 
Albert  R.  Parsons,  Adolph  Fischer,  George  Engel,  and  Louis  Lingg, 
guilty  of  murder,  and  fixing  death  as  the  penalty.  By  the  same  ver- 
dict they  also  found  Oscar  W.  Neebe  guilty  of  murder  and  fixed  the 
penalty  at  imprisonment  in  the  penitentiary  for  fifteen  years. 

About  the  1st  day  of  May,  1886,  the  workingmen  of  Chicago  and  of 
other  industrial  centres  in  the  United  States  were  greatly  excited  upon 
the  subject  of   inducing   their   employers   to  reduce  the  time  during 

^  Part  of  the  opinion  only  is  given.  — Ed. 


SECT.  VI.]  SPIES   V.    PEOPLE.  433 

which  they  should  be  required  to  labor  on  each  day  to  eight  hours. 
In  the  midst  of  the  excitement  growing  out  of  this  eight-hour  move- 
ment, as  it  was  called,  a  meeting  was  held  on  the  evening  of  May  4, 
1886,  at  the  Haymarket,  on  Randolph  street,  in  the  West  division  of 
the  city  of  Chicago.  This  meeting  was  addressed  by  the  defendants 
Spies,  Parsons,  and  Fielden.  While  the  latter  was  making  the  clos- 
ing speech,  and  at  some  point  of  time  between  ten  and  half-past  ten 
o'clock  in  the  evening,  several  companies  of  policemen,  numbering  one 
hundred  and  eighty  men,  marched  into  the  crowd  from  their  station  on 
Desplaines  street,  and  ordered  the  meeting  to  disperse.  As  soon  as 
the  order  was  given,  some  one  threw  among  the  policemen  a  dynamite 
bomb  which  struck  Began,  who  was  one  of  the  police  officers,  and 
killed  him.  As  the  result  of  the  throwing  of  the  bomb  and  of  the 
firing  of  pistol  shots,  which  immediately  succeeded  the  throwing  of  the 
bomb,  six  policemen  besides  Began  were  killed,  and  sixty  more  were 
seriously  wounded. 

It  is  undisputed  that  the  bomb  was  thrown  and  that  it  caused  the  death 
of  Began.  It  is  conceded  that  no  one  of  the  convicted  defendants 
threw  the  bomb  with  his  own  hands.  Plaintiffs  in  error  are  charged 
with  being  accessories  before  the  fact.  There  are  sixty-nine  counts  in 
the  indictment.  Some  of  the  counts  charge  that  the  eight  defendants 
above  named,  being  present,  aided,  abetted,  and  assisted  in  the  throw- 
ing of  the  bomb  ;  others,  that,  not  being  present,  aiding,  abetting  or 
assisting,  they  advised,  encouraged,  aided,  and  abetted  such  throwing. 
Some  of  the  counts  charge  that  said  defendants  advised,  encouraged, 
aided,  and  abetted  one  Rudolph  Schnaubelt  in  the  perpetration  of  the 
crime  ;  others  that  they  advised,  encouraged,  aided,  and  abetted  an  un- 
known person  in  the  perpetration  thereof. 

The  Illinois  statute  upon  this  subject  is  as  follows  (chap.  38,  dlv.  2, 
sees.  2  and  3)  : 

"Sec.  2.    An  accessory  is  he   who  stands  by,   and    aids,    abets,  or 
assists,  or  who,  not  being  present,  aiding,  abetting,  or  assisting,  hath 
advised,  encouraged,  aided,  or  abetted  the  perpetration  of  the  crime. 
He  who  thus  aids,  abets,  assists,  advises,  or  encourages  shall  be  con-  ■ 
sidered  as  principal,  and  punished  accordingly. 

''  Sec.  3.  Every  such  accessor}-,  when  a  crime  is  committed  within 
or  without  this  State,  by  his  aid  or  procurement  in  this  State,  may  be 
indicted  and  convicted  at  the  same  time  as  the  principal,  or  before,  or 
after  his  conviction,  and  whether  the  principal  is  convicted  or  amena- 
ble to  justice  or  not,  and  punished  as  principal." 

This  statute  abolishes  the  distinction  between  accessories  before  the 
fact  and  principals  ;  by  it  all  accessories  before  the  fact  are  made  prin- 
cipals. As  the  acts  of  the  principal  are  thus  made  the  acts  of  the  aC' 
cessorj',  the  latter  may  be  charged  as  having  done  the  acts  himself, 
and  may  be  indicted  and  punished  accordingly.  Baxter  v.  People,  3 
Gilm.  368;  Bempsey  v.  People,  47  111.  323. 

If,  therefore,  the  defendants  advised,  encouraged,  aided,  or  abetted 


434  SPIES  V.  PEOPLE.  [chap.  VI. 

the  killing  of  Degan,  the}'  are  as  guilty  as  though  the}-  took  his  life 
with  their  own  hands.  If  any  of  them  stood  by  and  aided,  abetted,  or 
assisted  in  the  throwing  of  the  bomb,  those  of  them  who  did  so  are  as 
guilt}^  as  though  they  threw  it  themselves. 

It  is  charged  that  the  defendants  formed  a  common  purpose,  and 
were  united  in  a  common  design  to  aid  and  encourage  the  murder  of 
the  policemen  among  whom  the  bomb  was  thrown.  If  they  combined 
to  accomplish  such  murder  by  concerted  action,  the  ordinary  law  of 
conspiracy  is  applicable,  and  the  acts  and  declarations  of  one  of  them, 
done  in  furtherance  of  the  common  design,  are,  in  contemplation  of 
law,  the  acts  and  declarations  of  all.  This  prosecution,  however,  is 
not  for  conspirac}'  as  a  substantive  crime.  Proof  of  conspiracy  is  only 
proper  so  far  as  it  ma}'  tend  to  show  a  common  design  to  encourage 
the  murder  charged  against  the  prisoners.  It  may  be  introduced  for  the 
purpose  of  establishing  the  position  of  the  members  of  the  combination 
as  accessories  to  the  crime  of  murder. 

The  questions  which  thus  present  themselves  at  the  threshold  of 
the  case  are  these  :  Did  the  defendants  have  a  common  purpose  or 
design  to  advise,  encourage,  aid,  or  abet  the  murder  of  the  police?  Did 
thev  combine  together  and  with  others  with  a  view  to  carrying  that 
purpose  or  design  into  effect?  Did  they  or  either  or  any  of  them  do 
such  acts  or  make  such  declarations  in  furtherance  of  the  common  pur- 
pose or  design  as  did  actually  have  the  effect  of  encouraging,  aiding, 
or  abetting  the  crime  in  question?  .  .  . 

It  is  apparent  from  this  review  of  the  evidence  that  just  such  an  at- 
tack was  made  at  the  Haymarket  as  was  contemplated  and  arranged  for 
by  the  conspiracy  of  Monday  night.  First,  a  bomb  was  thrown  among 
the  policemen  ;  next,  shots  were  fired  into  their  ranks  by  armed  men, 
belonging  to  the  organization  heretofore  described  and  who  had  been 
gathered  ai'ound  the  wagon  during  the  evening.  In  the  order  of  time, 
the  shooting  occurred  a  few  seconds  after  the  bomb  exploded.  This 
was  the  order  in  which  the  onset  with  the  two  different  kinds  ol 
weapons  was  to  be  made,  according  to  the  terms  of  the  conspiracy. 
The  mode  of  attack  as  made  corresponded  with  the  mode  of  attack 
as  planned. 

It  is  true  that  the  plan  adopted  contemplated  the  throwing  of  a 
bomb  into  each  station  and  then  shooting  Jown  the  police,  as  they 
should  come  out.  This  was  to  be  done,  however,  not  only  at  the 
North  avenue  station,  but  at  the  stations  "  in  other  parts  of  the  city." 
The  Desplaines  street  station  was  a  station  'n  one  of  the  "other 
parts  of  the  city,"  and  was  as  much  embraced  within  the  scope  of  the 
plan  as  the  rest  of  the  stations.  It  was  in  sight  of  the  speakers' 
wao"on,  and  only  a  short  distance  south  of  it.  If  a  bomb  had  been 
thrown  into  the  station  itself  and  the  policemen  had  been  shot  down 
while  coming  out,  a  part  of  the  conspiracy  would  have  been  literally 
executed  just  as  it  was  agreed  upon.  It  could  make  no  difference  in 
the    guilt  of  those  who  were  parties  to  the  conspiracy  that  the  man 


SECT.  VI.J  SPIES   V.   PEOPLE.  4o5 

who  threw  the  bomb  and  his  confederates  who  fired  the  shots  waited, 
before  doing  their  work,  until  the  policemen  in  the  station  had  left  it 
and  had  advanced  some  three  hundred  feet  north  of  it. 

If  A  hire  B  to  shoot  C  at  the  Sherman  House  in  the  city  of  Chicago 
on  a  certain  night,  but  B,  seeing  C  enter  the  Tremont  House  on  the 
same  night,  shoots  him  there,  A  is  none  the  less  guilty  of  aiding, 
abetting,  advising,  and  encouraging  the  murder  of  C.  If  there  is 
a  conspiracy  to  kill  policemen  at  a  station  house,  but  the  agents  of  the 
conspiracy  kill  the  policemen  a  short  distance  away  from  the  station 
house,  there  is  no  such  departure  from  the  original  design  as  to  relieve 
the  conspirators  of  responsibility. 

A  plan  for  the  perpetration  of  a  crime  or  for  the  accomplishment  of 
any  action,  whether  worthy  or  unworthy,  can  not  always  be  executed 
in  exact  accordance  with  the  original  conception.  It  must  suffer  some 
change  or  modification  in  order  to  meet  emergencies  and  unforeseen 
contingencies.   .   .  . 

Lingrj : 

The  jury  were  warranted  in  believing  from  the  evidence  that  the 
plaintiff  in  error,  Louis  Lingg,  was  a  party  to  the  Monday  night 
conspiracj'.   .  .  . 

Here  is  a  man,  connected  with  a  certain  organization,  engaged  in 
arming  and  drilling  for  a  conflict  with  the  police.  He  is  experimenting 
with  dynamite  and  in  the  construction  of  bombs  under  the  direction  of 
armed  members  of  that  organization.  He  makes  bomb  shells,  fills 
them  with  dynamite,  takes  them  to  the  meeting  place  of  armed  mem- 
bers of  that  organization,  puts  them  where  access  to  them  can  be 
easily  had,  using  such  precautions  as  such  dangerous  explosives  natu- 
rally require.  At  once,  certain  of  these  armed  members,  such  as  the 
two  large  men  of  the  Lehr  und  Wehr  Verein  already  spoken  of,  come 
forward  and  take  bombs  and  go  their  several  ways.  In  a  little  more 
than  an  hour  afterwards,  one  of  these  very  bombs  is  thrown  into  a 
crowd  of  policemen  and  explodes  and  kills  one  of  them.  Was  not  the 
conduct  of  this  man,  who  thus  coolly  and  carefully  prepared  the 
weapons  for  one  definite  class  of  men  to  use  in  the  murder  of  another 
definite  class  of  men,  marked  by  "deliberation,"  as  that  term  is  defined 
in  the  authorities  ? 

It  was  a  fair  conclusion  from  the  evidence  that  Lingg  knew  that  the 
bombs  he  was  making  would  be  thrown  among  the  police.  It  was  a 
fair  conclusion  from  the  evidence  that  he  intended  the  bombs  he 
placed  in  the  hall-way  to  be  used  by  the  members  of  the  International 
groups,  not  only  in  the  interest  of  the  general  movement  against  the 
police  with  which  he  was  connected,  but  in  the  interest  of  the  particu- 
lar conspiracy  that  was  concocted  on  Monday  night. 

Even  if  he  did  not  know  the  name  of  the  particular  individual  who 
was  to  throw  the  bomb,  he  knew  that  it  would  be  thrown  by  some 
one  belonging   to  the  sections  or  groups  already  described,  and  this 


436  SPIES  V.  TEOPLE.  [chap.  VI. 

was  sufficient  to  affect  him  with  the  guilt  of  advising,  encouraging,  aid- 
ing,  or  abetting  the  crime  charged  in  the  indictment. 

He  ma}-  not  have  known  what  particular  policeman  would  be  killed, 
whether  Matthias  J.  Degan,  or  another.  But  when  he  opened  the 
loaded  satcliel  at  Neff's  Hall  on  Tuesday  night,  that  act,  viewed  in  the 
light  of  all  the  antecedent,  attendant,  and  subsequent  occurrences,  was 
virtually  a  designation  of  the  body  or  class  of  men  who  were  to  be 
attacked.  When  one  of  such  class  was  killed,  the  guilt  was  the  same 
as  though  a  person  bearing  a  particular  name  had  been  pointed  out  as 
the  victim. 

Even  if  he  did  not  know  that  one  of  the  bombs  would  be  thrown  on 
that  evening  at  a  particular  place  called  the  Hay  market,  it  was  suffi- 
cient that  he  knew  it  was  to  be  used  at  that  point  in  the  city,  where 
a  collision  should  occur  between  the  workingmen  and  the  police. 
Such  a  collision  did  occur  at  the  Haymarket.  .  .  . 

Fielden  : 

There  is  evidence  of  a  very  distinct  and  positive  character  that 
Fielden  shot  at  the  police.  .   .  . 

It  is  true  that  Degan  was  killed  by  the  bomb  that  was  thrown  and 
not  by  the  shots  that  were  fired.  But  the  attack  at  the  Haymarket 
was  a  joint  attack  made  by  a  number  of  persons  with  two  different 
kinds  of  weapons  in  pursuance  of  a  previously  arranged  conspiracy. 
When  Fielden  lent  himself  to  the  execution  of  that  conspiracy  by  par- 
ticipating in  the  joint  attack,  he  was  just  as  guilty  of  the  murder 
of  Degan  by  reason  of  firing  his  pistol  as  though  he  had  thrown  the 
bomb.  If  the  man  who  threw  the  bomb  and  the  twenty  men  whom 
officer  Hanley  saw  running  into  the  alley  had  stood  up  together  and 
the  one  had  thrown  his  bomb  and  the  others  had  fired  their  shots  all  at 
the  same  time  into  the  ranks  of  the  police,  and  one  of  the  policemen 
had  at  once  fallen  dead,  would  not  each  of  the  twenty  men  have  been 
as  responsible  as  the  bomb- thrower  for  the  death  of  the  man  killed, 
whether  such  death  was  caused  by  the  bomb  or  by  the  shots  ?  All  had 
the  murderous  intent.  All  were  using  deadly  weapons  in  pursuance  of 
a  common  design  to  destroy  life.  The  conduct  of  Fielden  at  the  Hay- 
market, considered  in  connection  with  his  acts  prior  thereto  and  with 
all  the  other  facts,  as  herein  set  forth,  certainly  warranted  the  jury  in 
finding  that  he  was  one  of  the  conspirators. 

Parsons : 

The  jury  were  warranted  in  believing  from  the  evidence  that  the 
defendant  Parsons  was  associated  with  the  man  who  threw  the  bomb 
and  the  men  who  fired  the  shots  at  the  Haymarket,  in  a  conspiracy  to 
bring  about  a  social  revolution  in  Chicago  by  force  on  or  about  May  1, 
1886,  or,  in  other  words,  to  destroy  the  police  and  militia  on  or  about 
^hat  date  with  bombs  and  revolvers  or  rifles.     It  is  well  settled  that, 


SECT.  VI.]  SPIES    V.    PEOPLE.  437 

when  the  fact  of  a  conspiracy  is  once  established,  any  act  of  one  of  the 
conspirators  in  the  prosecution  of  the  enterprise  is  considered  the  act 
of  all.  Nudd  v.  Burrows,  91  U.  S.  426  ;  1  Wharton's  Am.  Crim.  Law 
(6th  ed.),  sec.  702;  3  Greenleaf  on  Evidence,  sec.  94. 

It  makes  no  difference,  that  Parsons  maj'  not  have  been  present  in 
the  basement  of  Griefs  Hall  when  the  Monday  night  conspiracy  was 
planned.  He  belonged  to  the  armed  sections,  whose  representatives 
entered  into  that  conspiracy  and  was  one  of  the  absent  members,  who 
were  to  be  informed  of  its  provisions.  One  of  those  provisions  was 
the  holding  of  a  meeting  at  the  Hay  market.  When  he  went  to  that 
meeting  in  obedience  to  a  summons  from  Rau,  and  there  made  an  in- 
cendiary speech,  he  joined  the  others  in  their  execution  of  the  con- 
spiracy and  thereb}-  became  a  part}'  to  it.  "  Individuals  who,  though 
not  specificallj'  parties  to  the  killing,  are  present  and  consenting  to  the 
assemblage,  by  whom  it  is  perpetrated,  are  principals  when  the  killing 
is  in  pursuance  of  the  common  design."  Wharton  on  Homicide  (2d 
ed.),  sec.  201  ;  Wharton's  Am.  Law  of  Homicide,  345,  346,  etc.  ; 
Regina  v.  Jackson,  7  Cox,  C.  C.  357  ;  Commonwealth  v.  Daley,  4 
Pa.  L.  J.  150. 

The  plan  adopted  on  Monday  night  was  merelj'  a  specific  mode  of 
carrying  out  the  more  general  conspiracy'  to  which  Parsons  and  those 
present  on  Monday  night  were  all  parties.  The  adoption  of  the  Mon- 
day night  plot  was  the  act  of  those  who  were  co-conspirators  with 
Parsons.  It  was  therefore  his  act.  He  had  advised  the  use  of  bombs 
and  arms  against  the  police  on  or  about  May  1.  The  men  who  met 
Monday  night  merely  indicated  more  specificall}'  the  time  when  and 
places  where  and  mode  in  which  such  bombs  and  arms  should  be  used, 
so  as  to  be  most  effective.  "  A  man  may  be  guilt}'  of  a  wrong  which 
he  did  not  specifically  intend,  if  it  came  naturally  or  even  accidentally 
from  some  other  specific,  or  a  general,  evil  purpose.  When,  therefore, 
persons  combine  to  do  an  unlawful  thing,  if  the  act  of  one  proceeding 
according  to  the  common  plan  terminates  in  a  criminal  result,  though 
not  the  particular  result  meant,  all  are  liable."  1  Bishop  on  Crim. 
Law,  636,   and  cases  cited. 

"  There  might  be  no  special  malice  against  the  part}'  slain,  nor  delib- 
erate intention  to  hurt  him  ;  but  if  the  fact  was  committed  in  prose- 
cution of  the  original  purpose,  which  was  unlawful,  the  whole  party 
will  be  involved  in  the  guilt  of  him  who  gave  the  blow."  (Foster, 
p.  351,  sec.  6.)  "  Where  there  is  a  conspiracy  to  accomplish  an  un- 
lawful purpose,  and  the  means  are  not  specifically  agreed  upon  or 
understood,  each  conspirator  becomes  responsible  for  the  means  used 
by  any  co-conspirator  in  the  accomplishment  of  the  purpose  in  which 
they  are  all  at  the  time  engaged."     State  v.  McCahill,  72  Iowa,  111. 

He  who  enters  into  a  combination  or  conspiracy  to  do  such  an  un- 
lawful act  as  will  probably  I'esult  in  the  unlawful  taking  of  human  life, 
must  be  presumed  to  have  understood  the  consequences  which  might 
reasonably  be  expected  to  flow  from  carrying  it  into  effect,  and  also  to 


438  SPIES   V.    PEOPLE  [chap.  VI. 

have  assented  to  the  doing  of  whatever  would  reasonably  or  probably 
be  necessary  to  accomplish  the  objects  of  the  conspiracy,  even  to  the 
taking  of  life.  1  Wharton  on  Crim.  Law  (9th  ed.),  sec.  225  a ;  Bren- 
nan  et  al.  v.  The  People,  15  111.  511 ;  Hanna  v.  The  People,  86  id.  243 ; 
Lamb  v.  The  People,  96  id.  74, 


Instruction. 

According  to  the  theory  of  tliis  instruction,^  the  defendants  conspired 
to  excite  certain  classes  to  tumult,  riot,  use  of  weapons,  and  taking  of 
life,  "as  a  means  to  carry  their  designs  and  purposes  into  effect." 
The  instruction  does  not  specify  what  those  designs  and  purposes  are, 
because  they  had  been  stated  in  the  two  preceding  instructions  to  be 
the  bringing  about  of  a  social  revolution  and  the  destruction  of  the 
authorities  of  the  cit^-.  The  ordinary-  workingman  had  two  purposes 
in  view,  first,  to  get  an  eight-hour  day  of  labor,  second,  to  keep  the 
police  from  interfering  to  protect  non-union  laborers  against  strikers. 
The  defendants  in  this  case  cared  nothing  about  the  eight  hour  move- 
ment or  the  contentions  between  union  and  non-union  men.  The}- 
looked  beyond  to  the  social  revolution.  The}'  sought  to  make  use 
of  the  excitement  among  the  workingmen  over  the  eight  hour  move- 
ment and  over  the  attacks  of  police  upon  strikers,  in  order  to  create 
riot  and  tumult  and  thus  precipitate  the  social  revolution.  The  stirring 
up  of  riot  and  tumult  was  with  them  a  means  to  an  end.  There  is 
testimony  tending  to  support  this  view.  Tlie  men  who  excited  the 
tumult  and  riot  by  print  and  speech  ma}'  have  had  a  different  end  in 
view  from  that  sought  by  the  classes  whom  they  so  excited.     But  they 

1  If  these  defendants,  or  any  two  or  more  of  tliem,  conspired  together,  with  or  not 
witli  any  other  person  or  persons,  to  excite  the  people  or  classes  of  tlie  people  of  this 
city  to  sedition,  tuinnlt,  and  riot,  to  nse  deadly  weapons  against  and  take  the  lives  ol 
other  persons,  as  a  means  to  carry  their  designs  and  purposes  into  effect,  and  in  pur 
suauce  of  such  conspiracy,  and  in  furtiierance  of  its  objects,  any  of  the  persons  so 
conspiring,  publicly,  by  print  or  sijeech,  advised  or  encouraged  the  commission  of 
murder,  without  designating  time,  place,  or  occasion  at  which  it  should  be  done,  and  in 
pursuance  of,  and  inciuced  by  such  advice  or  encouragement,  murder  was  committed, 
then  all  of  such  conspirators  are  guilty  of  such  murder,  whether  the  person  who  per- 
petrated such  murder  can  be  identified  or  not.  If  such  murder  was  committed  in  pur. 
suance  of  sucli  advice  or  encouragement,  and  was  induced  thereby,  it  does  not  mattei 
what  change,  if  any,  in  the  order  or  condition  of  society,  or  what,  if  any,  advantage  to 
themselves  or  others  the  conspirators  proposed  as  the  result  of  their  conspirac}-;  nor 
does  it  matter  whether  such  advice  and  encouragement  had  been  frequent  and  long- 
continued  or  not,  except  in  determining  whether  the  perpetrator  was  or  was  not  acting 
in  pursuance  of  such  advice  or  encouragement,  and  was  or  was  not  induced  thereby  to 
commit  the  murder.  If  there  was  such  conspiracy  as  in  this  instruction  is  recited, 
such  advice  or  eucouragement  was  given,  and  murder  committed  in  pursuance  of  and 
induced  thereby,  then  all  such  conspirators  are  guilty  of  murder.  Nor  does  it  matter, 
if  there  was  such  a  conspiracy,  how  impracticable  or  impossible  of  success  its  end  and 
aims  were,  nor  how  foolish  nor  ill-arranged  were  the  plans  for  its  execution,  except 
as  bearing  upon  the  question  whether  there  was  or  was  not  such  conspiracy. 


SECT.. VI.]  PEOPLE    V.   ELDER.  439 

were  none  the  less  responsible  for  murder  that  resulted  from  their  aid 
and  encouragement. 

If  the  defendants,  as  a  means  of  bringing  about  tlie  social  revolution 
and  as  a  part  of  the  larger  conspiracy  to  effect  such  revolution,  also 
conspired  to  excite  classes  of  worliingmen  in  Chicago  into  sedition, 
tumult,  and  riot  and  to  the  use  of  deadly  weapons  and  the  taking 
of  human  hfe,  and  for  the  purpose  of  producing  such  tumult,  riot,  use 
of  weapons,  and  taking  of  life,  advised  and  encouraged  such  classes  by 
newspaper  articles  and  speeches  to  murder  the  authorities  of  the  city, 
and  a  murder  of  a  policeman  resulted  from  such  advice  and  encourao-e- 
ment,  then  defendants  are  responsible  therefor. 

Judgmeyit  affirmed. 


PEOPLE   V.  ELDER. 
Supreme  Court  of  Michigan.     1894. 

[Reported  100  Mich.  515.] 

Hooker,  J.  Respondent  appeals  from  a  conviction  of  manslaugh- 
ter. He  was  a  bartender,  and,  in  an  altercation  with  the  deceased, 
struck  him  and  knocked  him  down,  whereupon  one  Nixon,  a  b^-stander, 
kicked  him,  from  which  kick  death  resulted.  The  theory  of  the  prosecu- 
tion was  that  there  was  preconcert  of  action  on  the  part  of  Nixon  and 
the  respondent.  The  respondent  denies  this ;  claiming  that  he  had 
no  reason  to  expect  an}-  assistance  from  Nixon,  or  to  anticipate  his 
interference,  and  that  he  did  not  induce  it. 

In  his  charge  to  the  jury,  the  trial  judge  said,  "On  the  part  of  the 
def?ndant,  I  give  you  the  instructions  which  I  now  read."  This  was 
followed  by  the  reading  of  several  requests,  in  which  the  law  was 
stated  correctl}'  upon  the  subject.     The  fifth  was  as  follows  : 

"If  it  shall  appear  to  you  from  the  evidence  that  Elder  did  not  him- 
self inflict  the  blow  or  do  the  injur}-  which  resulted  in  the  death  of 
Lowden,  and  that  Nixon,  by  his  own  motion,  while  the  encounter 
between  Elder  and  Lowden  was  going  on,  rushed  in,  uninvited  by  Elder, 
and  inflicted  the  injuries  which  produced  Lowden's  death,  then  you 
must  acquit  the  prisoner." 

To  this  the  court  added  as  follows  : 

"Unless  you  find  that  his  assault  upon  Lowden  contributed  and  pro- 
duced the  conditions  that  deprived  the  deceased  of  the  power  of  resist- 
ance, and  enabled  Nixon  the  better  to  inflict  great  bodily  injury  on  the 
deceased,  if  you  find  that  the  cause  of  death  was  the  wounds  or  injury 
he  received  on  that  occasion." 

The  requests  upon  the  part  of  the  respondent  were  followed  by  those 
of  the  prosecution,  twentj-two  in  number,  most  of  which  were  given,  and 
which  seem  to  have  concluded  the  charge.     The  first  was  as  follows: 


440  PEOPLE  V.     ELDER.  [CHAP.  VI. 

"If^'ou  find  that  the  respondent  assaulted  Lowden,  and  felled  him 
to  the  floor,  putting  the  body  of  the  deceased  in  such  a  position  that 
he  was  helpless  to  protect  himself  from  Nixon,  and  rendered  it  possible 
for  Nixon  to  kick  him,  such  act  upon  the  respondent's  part  was  unlaw- 
ful ;  and  if  decedent's  death  was  caused  by  the  defendant's  act,  the 
kicking  given  by  Nixon,  or  both  combined,  then  they  are  equallj'  guilty 
of  the  death  caused." 

This  request,  and  the  addition  to  respondent's  fifth  request,  were  in 
direct  contradiction  of  the  earlier  requests  given  upon  respondent's 
part,  wherein  the  jury  were  instructed  that  the  respondent  could  not  be 
convicted  if  the  death  was  caused  bj'  acts  of  Nixon,  for  which  respond- 
ent was  not  responsible,  and  which  he  did  not  induce  or  anticipate. 
The  discussion  of  this  subject,  which  appears  to  have  been  the  impor- 
tant point  in  the  case,  was  left  with  the  requests  and  the  addition 
which  has  been  mentioned. 

We  fear  that  the  jurors  were  misled  by  the  first  request  of  the  prose- 
cution, wh*ich  in  plain  terms  told  them  the}'  might  convict  the  respond- 
ent it  he  had  "assaulted  Lowden  and  felled  him  to  the  floor,  putting 
his  body  in  such  a  position  that  he  was  helpless  to  protect  himself  from 
Nixon,  and  rendered  it  possible  for  Nixon  to  kick  him,"  if  such  kick 
caused  death.  Equally  faultj-  was  the  implication  contained  in  the 
addition  to  respondent's  fifth  request,  —  that  if  respondent's  assault 
"  deprived  the  deceased  of  the  power  of  resistance,  and  enabled  Nixon 
the  better  to  inflict  great  bodily  injur}'  on  the  deceased,"  a  conviction 
might  follow. 

The  case  of  People  v.  Carter,  96  Mich.  583,  which  seems  to  have 
been  relied  upon  by  the  prosecution,  was  quite  a  difl"erent  case  from 
this.  In  that  case  the  respondent  felled  the  deceased  by  a  blow  while 
he  was  engaged  in  a  fight  with  another,  whereupon  that  other  im,medi- 
ately  kicked  him.  It  was  held  that  if  the  jury  could  find  that  the  re- 
spondent volunteered  to  aid  another  in  his  fight,  for  the  purpose  of 
aiding  him  to  whip  the  deceased,  they  were  joint  wrong-doers,  respon- 
sible for  each  other's  acts.  In  this  case  the  respondent's  contention 
was  that  he  was  not  a  volunteer  in  another's  cause,  but  that  the  other 
volunteered  in  his,  without  his  request  or  expectation.  He  was  entitled 
to  have  his  theory  properly  submitted  to  the  jur}'. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered. 

The  other  Justices  concurred. 


SECT.  VI.J  STATE  V.    TAYLOR.  441 

STATE  V.   TAYLOR. 

Supreme  Court  of  Vermont.     1896. 

[Reported  70  Vt.  1.] 

Indictment  for  an  assault  with  intent  to  kill  and  murder.  Trial  by 
jury  at  the  May  Terra,  1895,  Windsor  County,  Taft,  J.,  presiding. 
Verdict  and  judgment  of  guilty,  and  sentence  imposed  at  the  respond- 
ents' request.     The  respondents  excepted. 

MuNSON,  J.^  The  alleged  assault  was  committed  upon  Paul  Tinkhara, 
constable  of  Rochester,  and  three  persons  acting  under  him,  while  they 
were  effecting  an  arrest  of  the  respondents  and  two  others,  without  a 
warrant,  on  suspicion  of  felony. 

We  think  there  was  also  error  in  the  instruction  given  as  to  the 
liability  of  all  for  the  act  of  one.  The  court  charged  in  substance  that 
if  the  four  persons  whom  the  officers  were  attempting  to  arrest  were 
acting  together  with  a  common  purpose  of  resisting  arrest,  and  any  one 
of  the  four  shot  an  officer  in  the  execution  of  that  design  and  with  an 
intent  to  kill,  and  the  other  three  were  present,  assisting  in  the  assault, 
all  would  be  guilty  of  an  assault  with  that  intent.  Assuming  that  the 
charge  as  a  whole  was  sufficient  to  require  the  finding  of  an  actual  in- 
tent to  take  life  on  the  part  of  one,  it  will  be  seen  that  the  liability  of 
the  others  for  an  assault  with  intent  to  take  life  is  made  to  depend 
solel3'  upon  the  illegality  of  the  resistance.  It  is  doubtless  true  that 
if  all  were  combined  for  an  unlawful  resistance  to  the  officers,  and  an 
officer  had  been  killed  by  one  of  their  number,  all  would  have  been 
guilty  of  the  killing.  But  no  one  was  killed  ;  and  the  liability  of  the 
actual  assailant,  other  than  for  a  simple  assault,  depended  upon  the 
existence  of  a  specific  intent  to  kill.  We  think  the  jur}-  could  not  be 
permitted  to  return  a  verdict  of  guilty  of  an  assault  with  intent  to  mur- 
der against  all,  on  the  mere  finding  of  a  common  purpose  to  resist 
arrest.  It  would  doubtless  be  different  if  it  were  found  that  they  acted 
upon  a  common  understanding  that  the}'  would  do  whatever  might  be 
necessary  to  avoid  arrest. 

^  Only  so  much  of  the  case  as  discusses  the  guilt  of  the  accomplices  is  given. — Ed. 


442  CRIMES    AGAINST   THE    PEKSON.  [CHAP.  VII. 


CHAPTER   VII. 
CRIMES   AGAINST   THE  PERSON. 


SECTION   I. 

General  Principles. 

X  J-Iale,  Plea.*.  '/  the  Crowu,  425.  To  make  up  the  crime  of  homicide 
ov  warder  tLere  'aust  be  these  three  concurring  circumstances  :  — 

J.  T'le  party  must  be  killed.  Anciently  indeed  a  barbarous  assault 
with  an  ivitent  to  murder,  so  that  the  party  was  left  for  dead,  but  yet 
reco' ered  again,  was  adjudged  murder  and  petit  treason  (15  E.  2,  Coron. 
383) ;  but  that  holds  not  now,  for  the  stroke  without  the  death  of  the 
party  stricken,  nor  the  death  without  the  stroke  or  other  violence 
makes  not  the  homicide  or  murder,  for  tlie  death  consummates  the 
crime.  .   .   . 

Now  what  shall  be  said  a  killing  and  death  within  the  year  and 
day?  .  .  . 

If  a  man,  either  by  working  upon  the  fancy  of  another  or  possibly  by 
harsh  or  unkind  usage,  puts  another  into  such  passion  of  grief  or  fear 
that  the  part}'  either  dies  suddenly,  or  contracts  some  disease  whereof 
he  dies,  though,  as  the  circumstances  of  the  case  ma}'  be,  this  ma}'  be 
murder  or  manslaughter  in  the  sight  of  God,  yet  in  foro  hmnano  it 
cannot  come  under  the  judgment  of  felony,  because  no  external  act  of 
violence  was  offered  whereof  the  common  law  can  take  notice,  and 
secret  things  belong  to  God  ;  and  hence  it  was,  that  before  the  statute 
of  1  Jac.  cap.  12,  witchcraft  or  fascination  was  not  felony,  because  it 
wanted  a  trial,  though  some  constitutions  of  the  civil  law  make  it 
penal.    ... 

There  are  several  ways  of  killing  :  1.  By  exposing  a  sick  or  weak  per- 
son or  infant  unto  the  cold  to  the  intent  to  destroy  him  (2  E.  3,  18  b), 
whereof  he  dieth.  2.  By  laying  an  impotent  person  abroad,  so  that  he 
may  be  exposed  to  and  receive  moi'tal  harm  ;  as  laying  an  infant  in  an 
orchard  and  covering  it  with  leaves,  whereby  a  kite  strikes  it,  and  kills 
it.  6  Eliz.,  Crompt.  de  Pace  24 ;  Dalt.  ch.  93.  3.  By  imprisoning  a 
man  so  strictly  that  he  dies,  and  therefore  where  any  dies  in  gaol,  the 
coroner  ought  to  be  sent  for  to  enquire  the  manner  of  his  death.  4.  By 
starving  or  famine.  5.  By  wounding  or  blows.  6.  By  poisoning.  7. 
By  laying  noisome  and  poisonous  filth  at  a  man's  door,  to  the  intent  by 


SECT.  I.]  CKIMES   AGAINST   THE   PERSON.  443 

a  poisonous  air  to  poison  him  (Mr.  Dalton,  ch.  93,  out  of  Mr.  Coke's 
reading).     8.  By  strangling  or  suffocation.     Moriendi  millejigurae. 

A  man  infected  witli  tlie  plague,  having  a  plague-sore  running  upon 
him,  goes  abroad  ;  this  is  made  felon}-  by  the  statute  of  1  Jac.  cap.  31 ,  but 
is  now  discontinued  ;  but  what  if  such  person  goes  abroad,  to  the  intent 
to  infect  another,  and  another  is  thereby  infected  and  dies?  Whether 
this  be  not  murder  by  the  common  law  might  be  a  question  ;  but  if  no 
such  intention  evidently  appears,  though  de  facto  b}'  his  conversation 
another  be  infected,  it  is  no  felony  by  the  common  law,  though  it  be  a 
great  misdemeanor ;  and  the  reasons  are  :  1.  Because  it  is  hard  to  dis- 
cern whether  the  infection  arise  from  the  part}'  or  from  the  contagion 
of  the  air, —  it  is  God's  arrow  ;  and  2.  Nature  prompts  ever}-  man,  in  what 
condition  soever,  to  preserve  himself,  which  cannot  be  well  without 
mutual  conversation,  3.  Contagious  diseases,  as  plague,  pestilential 
fevers,  small-pox,  &c.,  are  common  among  mankind  b}-  the  visitation  ; 
and  the  extension  of  capital  punishments  in  cases  of  this  nature  would 
multiply  severe  punishments  too  far,  and  give  too  great  latitude  and 
loose  to  severe  punishments. 

II.  The  second  consideration  that  is  common  both  to  murder  and 
manslaughter  is,  who  shall  be  said  a  person,  the  killing  of  whom  shall 
be  said  murder  or  manslaughter. 

If  a  woman  be  quick  or  great  with  child,  if  she  takes  or  another  gives 
her  any  potion  to  make  an  abortion,  or  if  a  man  strike  her,  whereb}-  th« 
child  within  her  is  killed,  it  is  not  murder  nor  manslaughter  by  the  law 
of  England,  because  it  is  not  yet  iyi  rerum  natura,  though  it  be  a  gre£f 
crime,  and  by  the  judicial  law  of  Moses   was  punishable  with  death 
nor  can  it  legally  be  made  known,  whether  it  were  killed  or  not.     22  B 
3,  Coron.  263.     So  it  is,  if  after  such  child  were   born  alive,  and  bap 
tized,  and  after  die  of  the  stroke  given  to  the  mother,  this  is  not  homi 
cide.     1  E.  3,  23  b,  Coron.   146.   ...  If  a  man  kills  an  alien  enemj 
within  this  kingdom,  3-et  it  is  felony,  unless  it  be  in  the  heat  of  war,  an? 
in  the  actual  exercise  thereof. 

III.  The  third  inquir}-  is,  who  shall  be  said  a  person  killing.  .  .  . 
If  there  be  an  actual  forcing  of  a  man,  as  if  A.  by  force  take  the  arn 

of  B.  and  the  weapon  in  his  hand,  and  therewith  stabs  C.  whereof  h* 
dies,  this  is  murder  in  A.  but  B.  is  not  guilty.  Dalt.  cap.  93,  p.  242 
Plowd.  Com.  19  a.  But  if  it  be  only  a  moral  force,  as  by  threatening^ 
duress,  or  imprisonment,  &c.,  this  excuseth  not. 

1  Hawkins,  Pleas  of  the  Crown,  ch.  16,  sect.  2.  Rape  is  an  offence 
in  having  unlawful  and  carnal  knowledge  of  a  woman  b}-  force  and 
against  her  will. 

Ibid.,  ch.  19.  Robbery  is  a  felonious  and  violent  taking  away  from 
the  person  of  another  goods  or  money  to  any  value,  putting  him  in  fear. 

Ibid.,  ch.  1-5,  sect.  1,  2.  Such  hurt  of  any  part  of  a  man's  body 
whereby  he  is  rendered  less  able,  in  fighting,  either  to  defend  himself 
or  to  annoy  his  adversary,  is  properly  a  maim.     And  therefore  the  cut- 


444  REGINA    V.    RENSHAW.  [cHAP.  VII. 

ting  off  or  disabling  or  weakening  a  man's  hand  or  finger,  or  striking 
out  his  eye  or  fore-tooth,  or  castrating  him,  are  said  to  be  maims  ;  but 
the  cutting  off  his  ear  or  nose,  &c.,  are  not  esteemed  maims,  because 
they  do  not  weaken,  but  only  disfigure  him. 

Ibid.,  ch.  15,  sect.  1,  2.  An  assault  is  an  attempt,  or  offer,  with 
force  and  violence,  to  do  a  corporal  hurt  to  another ;  as  b}'  striking  at 
him  with  or  without  a  weapon  ;  or  presenting  a  gun  at  him  at  such  a 
distance  to  which  the  gun  will  carry  ;  or  pointing  a  pitchfork  at  him, 
standing  within  the  reach  of  it ;  or  by  holding  up  one's  fist  at  him  ;  or 
by  an}^  other  such-like  act  done  in  an  angrj-,  threatening  manner :  and 
from  hence  it  clearly  follows  that  one  charged  with  an  assault  and 
battery  ma}-  be  found  guilty  of  the  former,  and  yet  acquitted  of  the 
latter.  But  every  battery  includes  an  assault ;  therefore  on  an  indict- 
ment of  assault  and  battery  in  which  the  assault  is  ill  laid,  if  the  de- 
fendant be  found  guilty  of  the  battery  it  is  suflficient.  Notwithstanding 
many  ancient  opinions  to  the  contrary,  it  seems  agreed  at  this  day  that 
no  words  whatsoever  can  amount  to  an  assault. 

It  seems  that  an}'  injury  whatsoever,  be  it  never  so  small,  being 
actually  done  to  the  person  of  a  man  in  an  angry,  revengeful,  rude,  or 
insolent  manner,  as  by  spitting  in  his  face,  or  any  way  touching  him  in 
anger,  or  violently  jostling  him  out  of  the  wa}',  are  batteries  in  the  eye 
of  the  law. 


SECTION   11. 

Assault  and  Battery. 

REGINA  V.  RENSHAW. 
Sussex  Assizes.     1847. 
[Reported  2  Cox  C.  C.  285.] 

Maria  Renshaw  was  indicted  for  a  misdemeanor.  The  indictment 
contained  also  a  count  for  a  common  assault.^ 

Attree,  for  the  prosecution,  stated  that  the  prisoner,  having  been 
delivered  of  [a  bastard]  child  ten  days  before,  on  the  26th  of  June  left 
the  child,  swathed  in  a  large  piece  of  flannel  at  the  bottom  of  a  dry 
ditch,  in  a  field  in  the  pai'ish  of  Bexhill,  and  then  herself  departed  to 
Hastings,  a  place  ten  miles  distant,  where  she  was  afterwards  found. 
There  was  a  pathway  in  the  field  by  the  ditch,  and  a  lane  separated 
from  the  ditch  by  a  hedge,  neither  of  which  was  much  frequented 
The  child  was  found  alive. 

The  facts  having  been  proved  — 

1  Only  so  much  of  the  case  as  involves  the  question  of  assault  is  given.  —  Ed. 


SECT.  II.]  COMMONWEALTH    V.    WHITE.  445 

Parke,  B.  (to  the  jur}-).  There  were  no  marks  of  violence  on  the 
child,  and  it  does  not  appear,  in  the  result,  that  the  child  actually 
experienced  any  injury  or  inconvenience,  as  it  was  providentially 
found  soon  after  it  was  exposed  ;  and  therefore,  although  it  is  said  in 
some  of  the  books  that  an  exposure  to  the  inclemency  of  the  weather 
may  amount  to  an  assault,  yet  if  that  be  so  at  all,  it  can  only  be 
when  the  person  exposed  suffers  a  hurt  or  injury  of  some  kind  or  other 
from  the  exposure. 


COMMONWEALTH  v.   WHITE. 
Supreme  Judicial  Court  of  Massachusetts.     1872. 

[Reported  110  Massachusetts,  407.] 

Complaint  to  a  trial  justice,  alleging  that  the  defendant  "with  force 
and  arms  in  and  upon  the  body  of  Timothy  Harrington  an  assault  did 
make,  and  him  did  then  and  there  threaten  to  shoot  with  a  gun,  which 
he  then  and  there  pointed  and  aimed  at  said  Harrington." 

At  the  trial,  on  appeal,  in  the  Superior  Court,  before  Pitman  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defend- 
ant was  driving  in  a  wagon  along  a  highway,  which  Harrington,  one 
Sullivan,  and  others  were  repairing;  that  Sullivan  called  out  to  the 
defendant  to  drive  in  the  middle  of  the  road  ;  that  the  defendant  made 
an  offensive  reply  ;  that  thereupon  Sullivan  came  toward  the  defend- 
ant and  asked  him  w^hat  he  meant ;  that  Sullivan  and  Harrington  were 
about  fifteen  feet  from  the  defendant,  who  was  moving  along  all  the 
time  ;  that  the  defendant  took  up  a  double-barrel  gun  which  he  had  in 
the  wagon,  pointed  it  towards  Sullivan  and  Harrington,  took  aim  at 
them,  and  said,  "  I  have  got  something  here  that  will  pick  the  eyes 
of  you."  This  was  all  the  evidence  of  declarations  or  threats  of  the 
defendant  at  the  time  of  the  alleged  assault. 

Sullivan  testified  that  he  had  no  fear  and  did  not  suppose  the  de- 
fendant was  going  to  do  any  harm  ;  but  there  was  evidence  tending  to 
show  that  Harrington  was  put  in  fear.  The  defendant  testified  that 
the  gun  was  not  loaded. 

The  defendant  asked  the  judge  to  rule  that  the  complaint  could 
not  be  sustained  because  the  Commonwealth  had  failed  to  prove  the 
offence  as  alleged  in  the  complaint ;  but  the  judge  refused  so  to  rule, 
and  ruled  that  it  was  not  necessary  to  prove  a  threat  to  shoot  as  set 
forth  in  the  complaint. 

The  defendant  also  asked  the  judge  to  instruct  the  jury  "that  the 
facts  testified  to  did  not  constitute  an  assault;  that  at  the  time,  the 
defendant  must  have  had  an  intention  to  do  some  bodily  harm  to  Har- 
rington and  the  present  ability  to  carry  his  intention  into  execution  ; 
and  that  the  whole  evidence  would  not  warrant  the  jury  in  finding  a 


446  PEOPLE   V.  MOORE.  [CHAP.  VII. 

verdict  against  the  defendant."  But  the  judge  refused  so  to  instruct 
the  jurj',  and  instructed  thera  "  that  an  assault  is  any  unlawful  physical 
force  parti}'  or  fully  put  in  motion,  which  creates  a  reasonable  appre- 
hension of  immediate  physical  injury ;  and  that  if  the  defendant, 
within  shooting  distance,  menacingly  pointed  at  Harrington  a  gun, 
which  Harrington  had  reasonable  cause  to  believe  was  loaded,  and 
Harrington  was  actualh'  put  in  fear  of  immediate  bodily  injur}'  there- 
from, and  the  circumstances  of  the  case  were  such  as  ordinarily  to 
induce  such  fear  in  the  mind  of  a  reasonable  man,  that  then  an  assault' 
was  committed,  whether  the  gun  was  in  fact  loaded  or  not."  The  jury 
returned  a  verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

Wells,  J.-^  The  instructions  required  the  jury  to  find  that  the  acts 
of  the  defendant  were  done  "menacingly;"  that  Harrington  had 
reasonable  cause  to  believe  the  gun  pointed  at  him  was  loaded,  and 
was  actually  put  in  fear  of  immediate  bodil}'  injury  therefrom  ;  and 
that  the  circumstances  were  such  as  ordinarily  to  induce  such  fear  in 
the  mind  of  a  reasonable  man. 

Instructions  in  accordance  with  the  second  ruling  prayed  for  would 
have  required  the  jury  also  to  find  that  the  defendant  had  an  intention 
to  do  some  bodily  harm  and  the  present  ability  to  carry  his  intention 
into  execution.  Taking  both  these  conditions  literally,  it  is  difficult  to 
see  how  an  assault  could  be  committed  without  a  batter}-  resulting. 

It  is  not  the  secret  intent  of  the  assaulting  party  nor  the  undisclosed 
fact  of  his  ability  or  inability  to  commit  a  battery,  that  is  material ;  but 
what  his  conduct  and  the  attending  circumstances  denote  at  the  time 
to  the  party  assaulted.  If  to  him  they  indicate  an  attack,  he  is  justi- 
fied in  resorting  to  defensive  action.  The  same  rule  applies  to  the 
proof  necessary  to  sustain  a  criminal  complaint  for  an  assault.  It  is 
the  outward  demonstration  that  constitutes  the  mischief  which  is  pun- 
ished as  a  breach  of  the  peace.^  Exceptions  overruled. 


PEOPLE  V.  MOORE. 

Supreme  Court  of  New  York.     1888. 

{^Reported  oO  Hun,  356.] 

Landon,  J.'  The  material  facts  are  not  in  dispute.  The  main  ques- 
tions are  whether  the  conceded  facts   show  that  the  defendant  com- 

^  Arguments  of  counsel  and  part  of  the  opinion  are  omitted. 

'^  Ace.  State  v.  Shepard,  10  la.  126;  State  v.  Smith,  2  Humph,  457.  Contra, 
Chapman  v.  State,  78  Ala.  463  ;  State  v.  Sears,  86  Mo.  169;  State  v.  Godfrey,  17  Or. 
300;  and  see  a  learned  note,  2  Green  Cr.  L.  Rep.  271.  —  Ed. 

3  Only  so  much  of  the  opinion  is  given  as  involves  the  question  of  assault. 


SECT.  II.]  PEOPLE  V.    MOORE.  447 

mitted  an  assault  upon  the  complainant,  and  if  so,  whether  the  assault 
was  justifiable. 

The  defendant  was  in  the  employ  of  the  Burden  Ore  and  Iron 
Company.  This  company  owns  a  large  tract  of  land  in  Livingston, 
Columbia  county,  and  has,  in  the  development  of  its  business,  created 
upon  its  lands,  the  so-called  village  of  Burden.  This  consists  of  the 
company's  offices,  shops,  sixty  or  seventy  tenement-houses,  occupied 
by  its  servants  and  their  families,  a  public  store,  schoolhouse  and 
chapel.  A  post-office  is  established  there.  An  open  road  or  street, 
wholly  upon  the  company's  lands,  leads  from  the  public  highway  to 
the  village.  The  tenement-houses  of  the  village  are  in  rows  upon  both 
sides  of  the  village  streets.  All  these  streets  and  roads  are  open,  and 
to  every  appearance  are  public  highways.  The  company,  however, 
retains  title  to  the  land,  and  the  public  authorities  have  not  claimed 
or  assumed  any  authority  over  them. 

The  complainant  Snyder  was  a  peddler  of  milk  and  vegetables  and 
had  customers  for  his  supplies  in  this  village.  The  company  desired 
him  to  discontinue  his  traffic  in  the  village,  and  to  give  it  to  another 
person.  It  notified  him  that  the  village  and  its  streets  were  its  private 
property,  and  that  he  must  not  sell  milk  there  any  more.  He  refused 
to  discontinue.  The  company  directed  the  defendant  to  keep  him  out 
of  the  village,  but  to  use  no  more  force  than  was  necessary  for  the 
purpose,  and  to  be  careful  not  to  do  him  personal  injury.  The  defend- 
ant, in  pursuance  of  this  direction,  assisted  by  one  Ahlers,  on  the  14th 
day  of  March,  1887,  intercepted  Snyder  upon  the  road  leading  from 
the  public  higliway  to  the  village.  Snyder  was  alone,  was  seated  in 
his  sleigh  driving  his  team  of  horses  on  his  way  to  deliver  milk  to  his 
customers,  and  especially  some  apples  which  had  been  ordered  by  one 
of  them.  The  defendant  told  Snyder  he  was  trespassing  and  that  he 
had  orders  to  stop  him.  Snyder  attempted  to  drive  on.  The  defend- 
ant then  seized  the  lines  in  front  of  Snyder's  hands,  told  Ahlers  to 
take  the  horses  by  the  heads  and  turn  them  around,  which  Ahlers 
immediately  did,  the  defendant  at  the  same  time  remarking  that  ''the 
easiest  way  is  the  best  way."  When  the  team  and  sleigh,  with  Snydei 
in  it.  had  been  turned  around,  defendant  barred  the  passage  towards 
the  village  with  an  iron  pipe.     Snyder  thereupon  drove  away. 

Defendant  urges  that  this  was  no  assault,  for  the  reason  that  there 
was  no  intention  to  hurt  Snyder;  and  that  he  did  not  lay  his  hands 
upon  him.  It  is  plain,  however,  that  the  force  which  he  applied  to 
the  horses  and  sleigh  just  as  effectually  touched  the  person  of  Snyder, 
as  if  he  had  taken  him  by  his  ears  or  shoulders  and  turned  him  right 
about  face.  The  horses  and  sleigh  were  the  instruments  with  which  he 
directed  and  augmented  his  personal  and  physical  force  against,  and 
upon  the  body  of  Snyder.  Snyder  did  receive  bodily  harm.  One 
receives  bodily  harm,  in  a  legal  sense,  when  another  touches  his  person 
against  his  will  with  physical  force,  intentionally  hostile  and  aggressive, 
or  projects  such  force  against  his  person.     Here,  for  the  moment,  Sn}'- 


448  PEOPLE    V.    MOORE.  [CHAP.  VII. 

der  was  deprived  by  the  defeudaut  of  his  own  control  of  his  own  person  ; 
and  he  was  controlled,  intimidated,  and  coerced  by  the  hostile,  aggres- 
sive physical  force  of  the  defendant.  The  offer  to  prove  that  bodily 
harm  was  not  intended  was  made  in  the  face  of  the  defendant's  testi- 
mony that  he  intended  to  do  just  what  he  did  do.  The  obvious  purpose 
was  to  prove  tliat  there  was  no  intention  to  wound  or  bruise  the 
defendant,  or  cause  him  physical  pain.  So  long  as  this  was  not 
claimed  or  proved  on  the  part  of  the  prosecution,  disproof  of  it  was 
properly  rejected  for  the  reason  that  such  disproof  would  have  raised 
or  suggested  a  false  and  immaterial  issue,  tending  possibly  to  the 
miscarriage  of  justice. 

We  assume  that  if  Snyder  was  a  trespasser  the  assault  was  justifi- 
able, for  no  more  force  was  used  than  was  reasonably  necessary  to 
eject  him  from  the  premises  ;  but  he  was  not  a  trespasser.  The  streets 
leading  to  and  about  this  village  were  made  and  opened  hy  the  Burden 
Iron  and  Ore  Company  for  such  public  use  as  was  incident  to  the 
wants,  convenience,  and  happiness  of  tlie  people  residing  there.  To 
the  extent  of  this  public  use  tlae  company  subjected  its  private  property 
to  the  law  which  regulates  public  rights.  Munn  v.  Illinois,  94  U.  S., 
1 13.  No  doubt  it  can  depopulate  its  village  and  restore  its  lands  to 
the  solitude  of  its  exclusive  private  dominion  ;  but  as  long  as  it  enjoys 
the  benefits  of  public  association  and  communication  it  must  accept 
the  burdens  necessarily  and  properly  incident  to  them.  By  reserving 
the  legal  title  to  the  thoroughfares  of  its  village,  it  does  not  reserve 
autocratic  powers  over  the  people  residing  along  them.  To  prevent 
the  members  of  its  community  from  buying  supplies  of  Snyder,  or  of 
any  tradesman  not  nominated  by  the  company,  would  be  to  introduce 
a  condition  of  vassalage  inconsistent  with  our  free  institutions.  If 
these  families  may  buy  of  Snyder,  then  he  may  deliver  his  wares  to 
them,  and  use  for  the  purpose  the  appropriate  thoroughfares.  The 
assault  was,  therefore,  not  justifiable. 


SECT.  III.]  COMMONWEALTH  V.   BURKE.  449 


SECTION   III 

Hape. 

COMMONWEALTH  v.  BURKE 

Supreme  Judicial  Court  of  Massachusetts.     1870. 

[Reported  105  Massachusetts,  376.] 

Gray,  J.  —  The  defendant  has  been  indicted  and  convicted  for  aiding 
and  assisting  Dennis  Green  in  committing  a  rape  upon  Joanna  Caton. 
The  single  exception  taken  at  the  trial  was  to  the  refusal  of  the  presid- 
ing judge  to  rule  that  the  evidence  introduced  was  not  sufficient  to 
warrant  a  verdict  of  guilty.  The  instructions  given  were  not  objected 
to,  and  are  not  reported  in  the  bill  of  exceptions.  The  only  question 
before  us  therefore  is,  whether,  under  any  instructions  applicable  to 
the  case,  the  evidence  would  support  a  conviction. 

That  evidence,  which  it  is  unnecessary  to  state  in  detail,  was  sufficient 
to  authorize  the  jury  to  find  that  Green,  with  the  aid  and  assistance  of 
this  defendant,  had  carnal  intercourse  with  Mrs.  Caton,  without  her 
previous  assent,  and  while  she  was,  as  Green  and  the  defendant  both 
knew,  so  drunk  as  to  be  utterly  senseless  and  incapable  of  consenting, 
and  with  such  force  as  was  necessary  to  eflfect  the  purpose. 

All  the  statutes  of  England  and  of  Massachusetts,  and  all  the  text- 
books of  authority  which  have  undertaken  to  define  the  crime  of  rape, 
have  defined  it  as  the  having  carnal  knowledge  of  a  woman  b}^  force 
and  against  her  will.  The  crime  consists  in  the  enforcement  of  a 
woman  without  her  consent.  The  simple  question,  expressed  in  the 
briefest  form,  is.  Was  the  woman  willing  or  unwilling?  The  earher  and 
more  weighty  authorities  show  that  the  words  "  against  her  will,"  in 
the  standard  definitions,  mean  exactly  the  same  thing  as  "  without  her 
consent ; "  and  that  the  distinction  between  these  phrases,  as  applied 
to  this  crime,  which  has  been  suggested  in  some  modern  books,  is 
unfounded. 


450  COMMONWF.ALTH    V.    BURKE.  [CHAP.  VII. 

The  most  ancient  statute  upon  the  subject  is  that  of  Westm.  I.  c.  13, 
making  rape  (which  had  been  a  felony  at  common  law)  a  misdemeanor, 
and  declaring  that  no  man  should  "  ravish  a  maiden  within  age,  neither 
by  her  own  consent,  nor  without  her  consent,  nor  a  wife  or  maiden  of 
full  age,  nor  other  woman,  against  her  will,"  on  penalty  of  fine  and 
imprisonment,  either  at  the  suit  of  a  party  or  of  the  king.  The  St.  of 
Westm.  II.  c.  34,  ten  years  later,  made  rape  felony  again,  and  provided 
that  if  a  man  should  "ravish  a  Avoman,  married,  maiden,  or  other 
woman,  where  she  did  not  consent,  neither  before  nor  after,"  he  should 
be  punished  with  death,  at  the  appeal  of  the  party;  "and  likewise, 
where  a  man  ravisheth  a  woman,  married  lady,  maiden,  or  other  woman, 
with  force,  although  she  consent  afterwards,"  he  should  have  a  similar 
sentence  upon  prosecution  in  behalf  of  the  king. 

It  is  manifest  upon  the  face  of  the  Statutes  of  AVestminster,  and  is 
recognized  in  the  oldest  commentaries  and  cases,  that  the  words  "  with- 
out her  consent"  and  "against  her  will"  were  used  synonymously; 
and  that  the  second  of  those  statutes  was  intended  to  change  the 
punishment  onl}-,  and  not  the  definition  of  the  crime,  upon  any  indict- 
ment for  rape  —  leaving  the  words  "  against  her  will,"  as  used  in  the 
first  statute,  an  accurate  part  of  the  description.  Mirror,  c.  1,  §  12; 
c.  3,  §  21  ;  c.  5,  §  5  ;  30  &  31  Edw.  I.  529  532  ;  22  Edw.  IV.  22  ; 
Staunf  P.  C.  24  a.  Coke  treats  the  two  phrases  as  equivalent ;  for  he 
says  :  "  Rape  is  felony  b}'  the  common  law  declared  by  parliament,  for 
the  unlawful  and  carnal  knowledge  and  abuse  of  any  woman  above  the 
age  of  ten  years  against  her  will,  or  of  a  woman  child  under  the  age  of 
ten  years  with  her  will  or  against  her  will ; "  although  in  the  latter  case 
the  words  of  the  St.  of  Westm.  I.  (as  we  have  already  seen)  were 
"  neither  by  her  own  consent,  nor  without  her  consent."  3  Inst.  60. 
Coke  elsewhere  repeatedl}'  defines  rape  as  "the  carnal  knowledge  of  a 
woman  by  force  and  against  her  will."  Co.  Lit.  123  b  ;  2  Inst.  180.  A 
similar  definition  is  given  by  Hale,  Hawkins,  Comyn,  Blackstone,  P^ast, 
and  Starkie,  who  wrote  while  the  Statutes  of  Westminster  were  in  force  ; 
as  well  as  b\'  the  text-writers  of  most  reputation  since  the  St.  of  9  Geo. 

IV.  c  31,  repealed  the  earlier  statutes,  and,  assuming  the  definition  of 
the  crime  to  be  well  established,  provided  simply  that  "every  person 
convicted  of  the  crime  of  rape  shall  suffer  death  as  a  felon."  1  Hale  P. 
C.  628;  1  Hawk.  c.  41  ;  Com.  Dig.  Justices,  S.  2  ;  4  Bl.  Com.  210; 
1  East  P.  C.  434 ;  Stark.  Crim.  PI.  (2d  ed.)  77,  431  ;  1  Russell  on 
Crimes  (2d  Am.  ed.),  556,  (7th  Am.  ed.)  675  ;  3  Chit.  Crim.  Law,  810  ; 
Archb.  Crim.  PL  (10th  ed.)  481  ;  1  Gabbett  Crim.  Law,  831.  There 
is  authority  for  holding  that  it  is  not  even  necessarj'  that  an  indictment, 
which  alleges  that  the  defendant  "feloniously  did  ravish  and  carnally 
know"  a  woman,  should  add  the  words  "  against  her  will."  1  Hale  P. 
C.  632;  Harman  v.  Commonwealth,  12  S.  &  R.  69  ;  Commonwealth 

V.  Fogerty,  8  Graj-,  489.  However  that  may  be,  the  oflSce  of  those 
words,  if  inserted,  is  simply  to  negative  the  woman's  previous  consent. 
Stark.  Crim.  PI.  431  note. 


SECT.  III.J  COMMONWEALTH   V.   BURKE.  451 

In  the  leading  modern  English  case  of  The  Queen  v.  Camplin,  the 
great  niajorit}'  of  the  English  judges  held  that  a  man  who  gave  intoxi- 
cating liquor  to  a  girl  of  thirteen,  for  the  purpose,  as  tlie  jury  found, 
"  of  exciting  her,  not  with  the  intention  of  rendering  her  insensible, 
and  then  having  sexual  connection  with  her,"  and  made  her  quite 
drunk,  and,  while  she  was  in  a  state  of  insensibilit}-,  took  advantaoe  of 
it,  and  ravished  her,  was  guilty  of  rape.  It  appears  indeed  by  the 
judgment  delivered  by  Patteson,  J.,  in  passing  sentence,  as  reported  in 
1  Cox  Crim.  Cas.  220,  and  1  C.  &  K.  746,  as  well  by  tlie  contem- 
poraneous notes  of  Parke,  B.,  printed  in  a  note  to  1  Denison,  92,  and 
of  Alderson,  B.,  as  read  by  him  in  The  Queen  v.  Page,  2  Cox 
Crim.  Cas.  133,  that  the  decision  was  influenced  by  its  having  been 
proved  at  the  trial  that,  before  the  girl  became  insensible,  the  man 
had  attempted  to  procure  her  consent,  and  had  failed.  But  it  further 
appears  by  those  notes  that  Lord  Den  man,  C.  J.,  Parke,  B.,  and  Pat- 
teson, J.,  thought  that  the  violation  of  any  woman  without  her  con- 
sent, while  she  was  in  a  state  of  insensibility  and  had  no  power  over 
her  will,  by  a  man  knowing  at  the  time  that  she  was  in  that  state, 
was  a  rape,  whether  such  state  was  caused  by  him  or  not ;  for  example, 
as  Alderson,  B.,  adds,  ''in  the  case  of  a  woman  insensibly  drunk  in 
the  streets,  not  made  so  by  the  prisoner."  And  in  the  course  of  the 
argument  this  able  judge  himself  said  that  it  might  be  considered 
against  the  general  presumable  will  of  a  woman,  that  a  man  should 
have  unlawful  connection  with  her.  The  later  decisions  have  estab- 
lished the  rule  in  England  that  unlawful  and  forcible  connection  with  a 
woman  in  a  state  of  unconsciousness  at  the  time,  whether  that  state 
has  been  produced  by  the  act  of  the  prisoner  or  not,  is  presumed  to  be 
without  her  consent,  and  is  rape.  The  Queen  v.  Ryan,  2  Cox  Crim. 
Cas.  115;  Anon,  by  AVilles,  J.,  8  Cox  Crim.  Cas.  134;  Regina  ?;. 
Fletcher,  ib.  131 ;  s.  c.  Bell,  63 ;  Regina  v.  Jones,  4  Law  Times 
(n.  s.)  154;  The  Queen  v.  Fletcher,  Law  Rep.  1  C.  C.  39;  s.  c.  10 
Cox  Crim.  Cas.  248  ;  The  Queen  v.  Barrow,  Law  Rep.  1  C.  C.  156  ; 
s.  c.  11  Cox  Crim.  Cas.  191.  Although  in  Regina  v.  Fletcher,  ubi 
sup7'a,  Lord  Campbell,  C.  J.  (ignoring  the  old  authorities  and  the 
repealing  St.  of  9  Geo.  IV.)  unnecessarily  and  erroneously  assumed 
that  the  St.  of  Westm.  II.  was  still  in  force  ;  that  it  defined  the  crime 
of  rape ;  and  that  there  was  a  difference  between  the  expressions 
"  against  her  will "  and  "without  her  consent,"  in  the  definitions  of 
this  crime,  —  none  of  the  other  cases  in  England  have  been  put  upon 
that  ground,  and  their  judicial  value  is  not  impaired  by  his  inaccuracies. 

The  earliest  statute  of  Massachusetts  upon  the  subject  was  passed  in 
1642,  and,  like  the  Enghsh  Statutes  of  Westminster,  used  "without 
consent"  as  synonymous  with  "  against  her  will,"  as  is  apparent  upon 
reading  its  provisions,  which  were  as  follows:  1st  "  If  any  man  shall 
unlawfully  have  carnal  copulation  with  any  woman  child  under  ten 
years  old,  he  shall  be  put  to  death,  whether  it  were  with  or  without  the 
girl's  consent."     2d  "If  any  man  shall  forcibly  and  without  consent 


452  COMMONWEALTH    V.    BURKE.  [CHAP.  VII. 

ravish  any  maid  or  woman  that  is  lawful!}-  married  or  contracted,  he 
shall  be  put  to  death."  3d  "  If  any  man  shall  ravish  any  maid  or 
single  woman,  committing  carnal  copulation  with  her  b}'  force,  against 
her  will,  that  is  above  the  age  of  ten  years,  he  shall  be  either  punished 
with  death,  or  with  some  other  grievous  punishment,  according  to  cir- 
cumstances, at  the  discretion  of  tlie  judges."  2  Mass.  Col.  Rec.  21. 
Without  dwelling  upon  the  language  of  the  first  of  these  provisions, 
which  related  to  the  abuse  of  female  children,  it  is  manifest  that  in  the 
second  and  third,  both  of  which  related  to  the  crime  of  rape,  strictly  so 
called,  and  differed  only  in  the  degree  of  punishment,  depending  upon 
the  question  whether  the  woman  was  or  was  not  married  or  engaged  to 
be  married,  the  legislature  used  the  words  "without  consent,"  in  the 
second  provision,  as  precisely  equivalent  to  "  against  her  will,"  in  the 
third.  The  later  revisions  of  the  statute  have  abolished  the  difference 
in  punishment,  and  therefore  omitted  the  second  provision,  and  thus 
made  the  definition  of  rape  in  all  cases  the  ravishing  and  carnall}' 
knowing  a  woman  "  b}'  force  and  against  her  will."  Mass.  Col.  Laws 
(ed.  1660),  9,  (ed.  1672)  15  ;  Mass.  Prov.  Laws,  1692-93  (4  W.  &  M.) 
c.  19,  §  11  ;  1697  (9  W.  III.)  c.  18  ;  (State  ed.)  56,  296  ;  St.  1805,  c. 
97,  §  1  ;  Rev.  Sts.  c.  125,  §  18;  Gen.  Sts.  c.  160,  §  26.  But  they 
cannot  upon  any  proper  rule  of  construction  of  a  series  of  statutes  in 
pari  materia,  be  taken  to  have  changed  the  description  of  the  offence. 
Commonwealth  v.  Sugland,  4  Gray,  7  ;  Commonwealth  v.  Bailey,  13 
Allen,  541.  545. 

We  are  therefore  unanimously  of  opinion  that  the  crime,  which  the 
evidence  in  this  case  tended  to  prove,  of  a  man's  having  carnal  inter- 
course with  a  woman,  without  her  consent,  while  she  was,  as  he 
knew,  wholly  insensible  so  as  to  be  incapable  of  consenting,  and  with 
such  force  as  was  necessary  to  accomplish  the  purpose,  was  rape.  If 
it  were  otherwise,  an}'  woman  in  a  state  of  utter  stupefaction,  whether 
caused  by  drunkenness,  sudden  disease,  the  blow  of  a  third  person,  or 
drugs  which  she  had  been  persuaded  to  take  even  b}-  the  defendant 
himself,  would  be  unprotected  from  personal  dishonor.  The  law  is  not 
open  to  such  a  reproacli.^  Exceptio7is  overruled. 

1  Ace.  Reg.  V.  Champlin,  1  Den.  C.  C.  89  ;  Reg.  v.  Fletcher,  8  Cox  C.  C.  131  (cf 
Reg.  V.  Fletcher,  10  Cox  C.  C.  248) ;  Reg.  v.  Mayers,  12  Cox  C.  C.  311  ;  Reg.  v.  Bar- 
ratt,  12  Cox  C  C.  498.  But  see  a  learned  note  on  the  subject,  1  Green  Cr.,  L.  Rep. 
318.  — Ed. 


SECT.  IV.]  MUKDER.  453 


SECTION  IV. 


Murder. 

1  Hawkins,  Pleas  of  the  Crown,  ch.  13,  Sects.  1,  2.  The  word 
"murder"'  anciently  signified  only  the  private  killing  of  a  man,  for 
which,  by  force  oC  a  law  introduced  by  King  Canute  for  tiie  preser- 
vation of  his  Danes,  the  town  or  hundred  where  the  fact  was  done  was 
to  be  amerced  to  the  king,  unless  they  could  prove  that  the  person  slain 
were  an  Englishman  (which  proof  was  called  Engleschire),  or  could 
produce  the  offender,  etc.  And  in  those  days  the  open  wilful  killing 
of  a  man  tlirough  anger  or  malice,  etc.,  was  not  called  murder,  but 
voluntar}'  homicide. 

But  the  said  law  concerning  Engleschire  having  been  abolished  by 
14  Edw.  III.  c.  4.  the  killing  of  any  Englishman  or  foreigner  through 
malice  prepense,  whether  committed  openly  or  secreth',  was  l)y  de- 
grees called  murder;  and  13  Rich.  II.  c.  1,  which  restrains  the 
king's  pardon  In  certain  cases,  does  in  the  preamble,  under  the  general 
name  of  luurder,  include  all  such  homicide  as  shall  not  be  pardoned 
without  special  words ;  and,  in  the  body  of  the  Act,  expresses  the 
same  by  "  murder,  or  killing  by  await,  assault,  or  malice  prepensed." 
And  doubtless  the  makers  of  23  Hen.  VIII.  c.  1,  which  excluded  all 
wilful  murder  of  malice  prepense  from  the  benefit  of  the  clergy,  in- 
tended to  include  open,  as  well  as  private,  homicide  within  the  word 
murder. 

23  Hen.  VIII.  ch.  1,  Sect.  3.  Be  it  enacted  b}-  the  King  our  sover- 
eign lord,  and  the  lords  spiritual  and  temporal,  and  the  commons,  in  this 
present  parliament  assembled,  and  by  authorit}'  of  the  same,  That  no 
person  nor  persons,  which  hereafter  shall  happen  to  be  found  guilty 
after  the  laws  of  this  land,  for  any  manner  of  petit  treason,  or  for  any 
wilful  murder  of  malice  prepensed,  or  for  robbing  of  any  churches, 
chapels,  or  other  holy  places,  or  for  robbing  of  any  person  or  persons 
in  their  dwelling-houses,  or  dwelling-place,  the  owner  or  dweller  in  the 
same  house,  his  wife,  his  children,  or  servants  then  being  within,  and 
put  in  fear  and  dread  by  the  same,  or  for  robbing  of  any  person  or 
persons  in  or  near  about  the  highways,  or  for  wilful  burning  of  any 
dwelling-houses,  or  barns  wherein  any  grain  or  corn  shall  happen  to 
be,  nor  an}-  person  or  persons  being  found  guilt}-  of  any  abetment,  pro- 
curement, helping,  maintaining,  or  counselling,  of  or  to  any  such  petit 
treasons,  murders,  or  felonies,  shall  from  henceforth  be  admitted  to  the 
benefit  of  his  or  their  clerg}-,  but  utterh'  be  excluded  thereof,  and 
sufl'er  death  in  such  manner  and  form  as  they  should  have  done  for 
any  of  the  causes  or  oflTences  abovesaid  if  the}'  were  no  clerks ;  such 
as  be  within  holy  orders,  that  is  to  say,  of  the  orders  of  sub-deacon  or 
above,  only  except. 


454  KEX    V.    TOMSON.  [OHAP.  VII. 


YONG'S  CASE. 
Queen's  Bench.     1587. 

\ Reported  4  C'o^e,  40  a.] 

In  this  case  it  was  held  per  totam  curiatn  that  if,  upon  an  affra}-,  the 
constable  and  others  in  his  assistance  come  to  suppress  the  affray  and 
preserve  the  peace,  and  in  executing  their  office  the  constable  or  any 
of  his  assistants  is  killed,  it  is  murder  in  law,  although  the  murderer 
knew  not  the  party  that  was  killed,  and  although  the  affray  was  sudden  ; 
because  the  constable  and  his  assistants  came  by  authority  of  law  to 
keep  the  peace,  and  prevent  the  danger  which  might  ensue  by  the 
breach  of  it ;  and  therefore  the  law  will  adjudge  it  murder,  and  that 
the  murderer  had  malice  prepense,  because  he  set  himself  against  the 
justice  of  the  realm.  So  if  the  sheriff  or  any  of  his  bailiffs  or  other 
officers  is  "killed  in  executing  the  process  of  the  law,  or  in  doing  their 
duty,  it  is  murder  ;  the  same  law  of  a  watchman,  who  is  killed  in  the 
execution  of  his  office. 


REX  V.  TOMSON. 
Old  Bailey.     166-. 

[Reported  Kehjng,  66.] 

At  the  sessions  in  the  Old  Bailey  holden  after  Hilary  Term,  Caroli 
Secundi,  Thomas  Tomson  was  indicted  for  murdering  of  Allen  Dawes, 
and  the  jury  found  a  special  verdict  to  this  effect,  viz.,  that  the  day, 
year,  and  place  in  the  indictment  mentioned,  Thomas  Tomson,  the 
prisoner,  and  his  wife  were  fighting  in  the  house  of  the  said  Allen 
Dawes,  who  was  killed,  and  the  said  Allen  Dawes,  seeing  them  fight- 
ino-,  came  in  and  endeavored  to  part  them,  and  thereupon  the  said 
Tomson  thrust  away  the  said  Dawes,  and  threw  him  down  upon  a  piece 
of  iron,  which  was  a  bar  in  a  chimney-  which  kept  up  the  fire,  and  by 
that  one  of  the  ribs  of  the  said  Dawes  was  broken,  of  which  he  died  ; 
and  if  the  court  judge  this  murder,  they  find  so,  or  if  manslaughter, 
then  they  find  so. 

-  And  I  put  this  case  to  my  Lord  Chief  Justice,  Baron  Hales  and  my 
brother,  and  some  other  of  my  brethren,  and  we  all  agreed  as  it  is 
resolved  in  Young's  case,  Co.  4.  Report,  and  also  in  Mackally's  case, 
Co.  9.  Report,  that  if  upon  a  sudden  affray,  a  constable  or  watchman, 
or  any  that  come  in  aid  of  them,  who  endeavor  to  part  them,  are  killed, 
this  is  murder;  and  we  hold  likewise  that  if  no  constable  or  watchman 
be  there,  if  any  other  person  come  to  part  them,  and  he  be  killed,  this 
is  murder ;  for  every  one  in  such  case  is  bound  to  aid  and  preserve  the 


SECT.  IV.]  gkey's  case.  455 

king's  peace.  But  in  all  those  cases  it  is  necessar}'  that  the  part}'  who 
was  fighting  and  killed  him  that  came  to  part  them,  did  know  or  had 
notice  give.i  that  they  came  for  that  purpose.  As  for  the  constable  or 
other  person  who  cometh  to  part  them,  to  charge  them  in  the  king's 
name  to  keep  the  king's  peace,  by  which  the}-  have  notice  of  their 
intents  ;  for  otherwise  if  two  are  fighting,  and  a  stranger  runs  in  with 
intent  to  part  them,  3'et  the  part}'  who  is  figliting  may  think  he 
cometh  in  aid  of  the  other  with  whom  he  is  fighting,  unless  some  such 
notice  be  given  as  aforesaid,  that  he  was  a  constable  and  came  to  part 
them  :  and  that  appeareth  by  Mackally's  case  before  cited,  where  in  case 
of  an  arrest  by  a  sergeant,  it  is  necessar}-,  to  mnke  it  murder,  that  the 
sergeant  tell  hnn  that  he  doth  arrest,  for  else  if  he  doth  sa}^  nothing, 
but  fall  upon  the  man  and  be  killed  by  him,  this  is  but  manslaughter, 
unless  it  appear  that  the  person  arrested  did  know  him  to  be  a  sergeant, 
and  that  he  came  to  arrest  him  ;  for  as  the  case  is  there  put,  if  one 
seeing  the  sheriff  or  a  sergeant  whom  he  knoweth  hath  a  warrant  to 
arrest  him,  and  to  prevent  it  before  the  oflflcer  come  so  near  as  to  let 
him  know  he  doth  arrest  him,  he  shoots  again  at  him,  and  kills  him, 
this  is  murder;  and  in  the  principal  case,  though  the  jury  find  that 
Dawes  came  to  part  the  man  and  wife,  yet  it  doth  not  appear  whether 
it  is  found  that  Tomson  knew  his  intent,  nor  that  Dawes  spake  any 
words  whereby  he  might  understand  his  intention,  as  charging  them  to 
keep  the  king's  peace,  etc.,  and  so  we  held  it  to  be  only  manslaughter, 
which  in  law  is  properly  chance-medle}',  that  is,  where  one  man  upon  a 
sudden  occasion  kills  another  without  malice  in  fact,  or  malice  implied 
by  law. 


GREY'S   CASE. 
Old  Bailey.     1666. 

[Reported  Kelyng,  64.] 

John  Grey  being  indicted  for  the  murder  of  William  Golding,  the 
jur}'  found  a  special  verdict  to  this  efliect,  viz. :  We  find  that  the  day, 
3'ear,  and  place  in  the  indictment  mentioned  John  Grey,  the  prisoner,  was 
a  blacksmith,  and  that  William  Golding,  the  person  killed,  was  his  ser- 
vant, and  that  Grey  his  master  commanded  him  to  mend  certain  stamps, 
being  part  belonging  to  his  trade,  which  he  neglected  to  do  ;  and  the 
said  Grey,  his  master,  after  coming  in  asked  him  the  said  Golding, 
why  he  had  not  done  it,  and  then  the  said  Grey  told  the  said  Golding, 
that  if  lie  would  not  serve  him,  he  should  serve  in  Bridewell,  to  which 
the  said  Golding  replied,  that  he  had  as  good  serve  in  Bridewell  as 
serve  the  said  Grey  his  master ;  whereupon  the  said  Gre}',  without  any 
other  provocation,  struck  the  said  Golding  with  a  bar  of  iron,  which 
the  said  Grey  then  had  in  his  hand,  upon  which  he  and  Golding  were 


456  grey's  case.  [chap,  vii. 

working  at  the  anvil,  and  with  the  said  blow  he  broke  his  skull,  of 
which  he  died ;  and  if  this  be  murder,  etc.  This  case  was  found 
speciall}'  by  the  desire  of  my  Brother  Wylde,  and  I  showed  the  special 
verdict  to  all  my  Brethren,  Judges  of  the  King's  Bench,  and  to  ni}' 
Lord  Bridgman,  Chief  Justice  of  the  Common  Pleas.  And  we  were  all 
of  opinion  that  this  was  murder.  For  if  a  father,  master,  or  school- 
master will  correct  his  cliild,  servant,  or  scholar,  thev  must  do  it  with 
such  things  as  are  fit  for  correction,  and  not  with  such  instruments  as 
may  probaI)ly  kill  them.  For  otherwise,  under  pretence  of  correction, 
a  parent  might  kill  his  child,  or  a  master  his  servant,  or  a  school- 
master his  scholar,  and  a  bar  of  iron  is  no  instrument  for  correction. 
It  is  all  one  as  if  he  had  run  him  through  with  a  sword  ;  and  my 
Brother  Morton  said  he  remembered  a  case  at  Oxford  Assizes  before 
Justice  Jones,  then  Judge  of  Assize,  where  a  smith  being  chiding 
with  his  servant,  upon  some  cross  ans\ver  given  by  his  servant,  he 
having  a  piece  of  hot  iron  in  his  hand  run  it  into  his  servant's  belly, 
and  it  was  judged  murder,  and  the  party  executed.  And  mj-  Lord 
Bridgman  said,  that  in  his  circuit  there  was  a  woman  indicted  for 
murdering  her  child,  and  it  api)cared  upon  the  evidence  that  she  kicked 
her  and  stamped  upon  her  belly,  and  he  judged  it  murder.  And  my 
Brother  Twisden  said  he  ruled  such  a  case  formerly  in  Gloucester  Cir- 
cuit;, for  a  piece  of  iron  or  a  sword  or  a  great  cudgel,  with  which  a 
man  probably  may  be  slain,  are  not  instruments  of  correction.  And 
therefore,  when  a  master  strikes  his  servant  willingly  with  such  things 
as  those  are,  if  death  ensue,  the  law  shall  judge  it  malice  prepense  ;  and 
therefore  the  statute  of  5  H.  IV.  c.  5,  which  enacts  that  if  any  one  does 
cut  out  the  tongue,  or  put  out  the  eyes  of  any  of  the  king's  subjects  of 
malice  prepense,  it  shall  be  felony.  If  a  man  do  cut  out  the  tongue  of 
another  man  voluntarily,  the  law-  judgeth  it  of  malice  prepense.  And 
so  where  one  man  killeth  another  without  any  provocation,  the  law 
judgeth  it  malice  prepense  ;  and  in  the  L.  Morley's  case  in  this  book,  it 
was  resolved  by  all  the  judges,  that  words  are  no  provocation  to  lessen 
the  offence  from  being  murder,  if  one  man  kill  another  upon  ill  words 
ofiven  to  him.  But  if  a  parent,  master,  or  schoolmaster,  correct  his 
child,  servant,  or  scholar,  with  such  things  as  are  usual  and  fit  for 
correction,  and  they  happen  to  die,  Poulton  de  Pace,  p.  120,  saith  this 
is  by  misadventure,  and  cites  for  authority,  Keilway,  108,  a,  b,  & 
136,  a.  But  that  book  which  puts  this  case  in  Keilway  is  136,  a,  saith 
that  if  a  master  correct  his  servant,  or  lord  his  villain,  and  by  force  of 
that  correction  he  dieth.  although  he  did  not  intend  to  kill  him,  yet  this 
is  felony,  because  they  ought  to  govern  themselves  in  their  correction 
in  such  ways  that  such  a  misadventure  might  not  happen.  And  I 
suppose,  because  the  word  misadventure  is  there  used,  therefore  Poul- 
ton concludeth  (it  may  be  truly)  that  it  is  but  misadventure. 

And  in  this  principal  case,  upon  certificate  [by]  many  persons  of 
good  commendation  of  the  general  esteem  that  Grey  had,  I  did  certifie 
the  King  that  though  in  strictness  of  law  his  offence  was  murder,  yet  it 


SECT.  IV.J  REGINA   V.   SEKN^.  457 

was  attended  with  such  circumstances  as  might  render  the  person  an 
object  of  his  Majesty's  grace  and  pardon,  he  having  a  very  good  report 
among  all  his  own  company  of  his  own  trade,  and  of  all  his  neighbors  ; 
and  upon  this  the  King  was  pleased  to  grant  him  his  pardon. 


REGINA  V.   SERNE. 
Central  Ckiminal  Court.     1887. 

[Reported  16  Cox  C.  C.  311.] 

The  prisoners  Leon  Seme  and  John  Henry  Goldfinch  were  indicted 
for  the  murder  of  a  boy,  Sjaak  Serne,  the  son  of  the  prisoner  Leon 
Serne,  it  being  alleged  that  they  wilfully  set  on  fire  a  house  and  shop, 
No.  274  Strand,  London,  by  which  act  the  death  of  the  boy  had  been 
caused. 

It  appeared  that  the  prisoner  Serne  with  his  wife,  two  daughters,  and 
two  sons  were  living  at  the  house  in  question  ;  and  that  Serne,  at  the 
time  he  was  living  there,  in  midsummer,  1887,  was  in  a  state  of  pecu- 
niaiT  embarrassment,  and  had  put  into  the  premises  furniture  and 
other  goods  of  but  very  little  value,  which  at  the  time  of  the  fire  were 
not  of  greater  value  than  £30.  It  also  appeared  that  previously  to  the 
fire  the  prisoner  Serne  had  insured  the  life  of  the  boy  Sjaak  Serne, 
who  was  imbecile,  and  on  the  first  day  of  September,  1887,  had  in- 
sured his  stock  at  274  Strand,  for  £500,  his  furniture  for  £100,  and 
his  rent  for  another  £100  ;  and  that  on  the  17th  of  the  same  month  the 
premises  were  burnt  down. 

Evidence  was  given  on  behalf  of  the  prosecution  that  fires  were  seen 
breaking  out  in  several  parts  of  the  premises  at  the  same  time,  soon 
after  the  prisoners  had  been  seen  in  the  shop  together,  two  fires  being 
in  the  lower  part  of  the  house  and  two  above,  on  the  floor  whence 
escape  could  be  made  on  to  the  roof  of  the  adjoining  house,  and  in 
which  part  w^ere  the  prisoners,  and  the  wife,  and  two  daughters  of 
Serne,  who  escaped  ;  that  on  the  premises  were  a  quantity  of  tissue 
transparencies  for  advertising  purposes,  which  were  of  a  most  inflam- 
mable character  :  and  that  on  the  site  of  one  of  the  fires  was  found  a 
great  quantitv  of  these  transparencies  close  to  other  inflammable  ma- 
terials ;  that  the  prisoner  Serne,  his  wife  and  daughters,  were  rescued 
from  the  roof  of  the  adjoining  house,  the  other  prisoner  being  rescued 
from  a  window  in  the  front  of  the  house,  but  that  the  boys  were  burnt 
to  death,  the  body  of  the  one  being  found  on  the  floor  near  the  win- 
dow from  which  the  prisoner  Serne,  his  wife,  and  daughters  had 
escaped,  the  body  of  the  other  being  found  at  the  basement  of  the 
premises. 


458  REGINA   V.    SERNE.  [CHAP.  VII. 

Stephen,  J.  Gentlemen,  it  is  now  my  duty  to  direct  your  attention 
to  the  law  and  the  facts  into  wliich  you  have  to  inquire.  The  two 
prisoners  are  indicted  for  the  wilful  murtler  of  the  boy  Sjaak  Serne,  a 
lad  of  about  fourteen  3ears  of  age  ;  and  it  is  necessary"  that  1  should 
explain  to  you,  to  a  certain  extent,  the  law  of  England  with  regard  to 
the  crime  of  wilful  murder,  inasmuch  as  you  have  heard  something  said 
about  constructive  murder.  Now  that  phrase,  gentlemen,  has  no  legal 
meaning  whatever.  There  was  wilful  murder  according  to  the  plain 
meaning  of  the  term,  or  there  was  no  murder  at  all  in  the  present  case. 
The  definition  of  murder  is  unlawful  homicide  with  malice  aforethought, 
and  the  words  '' malice  aforethought"  are  technical.  You  must  not, 
therefore,  construe  them  or  suppose  that  the}'  can  be  construed  b}' 
ordinary  rides  of  language.  The  words  have  to  be  construed  according 
to  a  long  series  of  decided  cases,  which  have  given  them  meanings  dif- 
ferent from"  those  which  might  be  supposed.  One  of  those  meanings  is, 
the  killing  of  another  person  by  an  act  done  with  an  intent  to  commit  a 
felony.  Anotlier  meaning  is,  an  act  done  with  the  knowledge  that  the 
act  will  probabh"  cause  the  death  of  some  person.  Now  it  is  such  an 
act  as  the  last  which  is  alleged  to  have  been  done  in  this  case  ;  and  if 
you  think  that  either  or  both  of  these  men  in  the  dock  killed  this  boy, 
either  by  an  act  done  with  intent  to  commit  a  felony,  that  is  to  sa}',  the 
setting  of  the  house  on  fire  in  order  to  cheat  the  insurance  company,  or 
b}'  conduct  which  to  their  knowledge  was  likelv  to  cause  death  and 
was  therefore  eminently  dangerous  in  itself,  —  in  either  of  these  cases 
the  prisoners  are  guilty  of  wilful  murder  in  the  plain  meaning-  of  the 
word.  I  will  say  a  word  or  two  upon  one  part  of  this  definition,  because 
it  is  capable  of  being  applied  verj-  harshl}'  in  certain  cases,  and  also 
because,  though  I  take  the  law  as  I  find  it,  I  very  much  doubt  whether 
the  definition  which  I  have  given,  although  it  is  the  common  definition, 
is  not  somewhat  too  wide.  Now  when  it  is  said  that  murder  means 
killing  a  man  b}"  an  act  done  in  the  commission  of  a  felony,  the  mere 
words  cover  a  case  like  this,  that  is  to  say,  a  case  where  a  man  gives 
another  a  push  with  an  intention  of  stealing  his  watch,  and  the  person 
so  pushed,  having  a  weak  heart  or  some  other  internal  disorder,  dies. 
To  take  another  ver}'  old  illustration,  it  was  said  that  if  a  man  shot  at 
a  fowl  with  intent  to  steal  it  and  accidentall}'  killed  a  man,  he  was  to  be 
accounted  guilty  of  murder,  because  the  act  was  done  in  the  commis- 
sion of  a  felony.  I  very  nuich  doubt,  however,  whether  that  is  really 
the  law.  or  whether  the  Court  for  the  Consideration  of  Crown  Cases 
Reserved  would  hold  it  to  be  so.  The  present  case,  however,  is  not 
such  as  I  have  cited,  nor  anything  like  them.  In  m}'  opinion  the  defi- 
nition of  the  law  which  makes  it  murder  to  kill  by  an  act  done  in  the 
commission  of  a  felony  might  and  ought  to  l)e  narrowed,  while  that  part 
of  the  law  under  which  the  Crown  in  this  case  claim  to  have  proved  a 
case  of  murder  is  maintained.  I  think  that,  instead  of  saying  that 
any  act  done  with  intent  to  commit  a  felony  and  which  causes  death 
amounts  to  murder,  it  M^ould  be  reasonable  to  sa}'  that  any  act  known 


SECT.  IV.]  KEGINA    V.   SERNI§.  4.'i9 

to  be  dangerous  to  life  and  likely  in  itself  to  cause  death,  done  for  the 
purpose  of  committing  a  felony,  which  caused  death,  should  be  murder. 
As  an  illustration  of  this,  suppose  that  a  man,  intending  to  commit  a 
rape  ui)on  a  woman,  but  without  the  least  wish  to  kill  her,  squeezed 
her  by  the  throat  to  overpower  her,  and  in  so  doing  killed  her;  that 
would  be  murder.  1  tliink  that  every  one  would  say,  in  a  case  like  that, 
that  wlien  a  person  began  doing  wicked  acts  for  his  own  base  purposes, 
he  risked  his  own  life  as  well  as  that  of  others.  That  kind  of  crime 
does  not  ditfer  in  any  serious  degree  from  one  committed  by  using  a 
deadly  weapon,  such  as  a  bludgeon,  a  pistol,  or  a  knife.  If  a  man  once 
begins  attacking  the  human  body  in  such  a  wa}',  he  must  take  the  con- 
sequences if  he  goes  further  than  he  intended  when  he  began.  That 
I  take  to  be  the  true  meaning  of  the  law  on  the  subject.  In  tlie  present 
case,  gentlemen,  you  have  a  man  sleeping  in  a  house  with  his  wife, 
his  two  daughters,  his  two  sons,  and  a  servant,  and  you  are  asked  to 
believe  that  this  man,  with  all  these  people  under  his  protection,  delib- 
erately set  fire  to  the  house  in  three  or  four  different  places  and  thereby 
burnt  two  of  them  to  death.  It  is  alleged  that  he  arranged  matters 
in  such  a  way  tliat  an}'  person  of  the  most  common  intelligence  must 
have  known  perfectly  well  that  he  was  placing  all  those  people  in 
deadly  risk.  It  appears  to  me  that  if  that  were  realh*  done,  it  matters 
very  little  indeed  whether  the  prisoners  hoped  the  people  would  escape 
or  whether  they  did  not.  If  a  person  chose,  for  some  wicked  purpose 
of  his  own,  to  sink  a  boat  at  sea,  and  thereby  caused  the  deaths  of  the 
occupants,  it  matters  nothing  whether  at  the  time  of  committing  the 
act  he  hoped  that  the  people  would  be  picked  up  by  a  passing  vessel. 
He  is  as  much  guilty  of  murder,  if  the  people  are  drowned,  as  if  he  had 
flung  every  person  into  the  water  with  his  own  hand.  Therefore,  gentle 
men,  if  Scrne  and  Goldfinch  set  fire  to  this  house  when  the  family  were 
in  it,  and  if  the  boys  were  by  that  act  stifled  or  burnt  to  death,  then 
the  prisoners  are  as  much  guilty  of  murder  as  if  they  had  stabbed  the 
children.  I  will  also  add,  for  my  own  part,  that  I  think,  in  so  saying, 
the  law  of  England  lays  down  a  rule  of  broad,  plain  common-sense. 
Treat  a  murderer  how  you  will,  award  him  what  punishment  you 
choose,  it  is  your  duty,  gentlemen,  if  you  think  him  really  guilty  of 
murder,  to  say  so.  That  is  the  law  of  the  land,  and  I  have  no  doubt 
in  my  mind  with  regard  to  it.  There  was  a  case  tried  in  this  court 
which  you  will  no  doubt  remember,  and  which  will  illustrate  my  mean- 
ing. It  was  the  Clerkenwell  explosion  case  in  1868,  when  a  man 
named  Barrett  was  charged  with  causing  the  death  of  several  persons 
bv  an  explosion  which  was  intended  to  release  one  or  two  men  from 
custody  ;  and  I  am  sure  that  no  one  can  say  truly  that  Barrett  was  not 
justly  hanged.  With  regard  to  the  facts  in  the  i)i-esent  case,  the  very 
horror  of  the  crime,  if  crime  it  was,  the  abomination  of  it.  is  a  reason 
for  your  taking  the  most  extreme  care  in  the  case,  and  for  not  imputing 
to  the  prisoners  anything  which  is  not  clearly  proved.  God  forbid  that 
I  should,  by  what  I  say,  produce  on  your  minds,  even  in  the  smallest 


460  STATE    V.   SMITH.  [CHAP.  VII. 

degree,  any  feeling  against  the  prisoners.  You  must  see,  gentlemen, 
that  the  evidence  leaves  no  reasonable  doubt  upon  your  minds ;  but 
you  will  fail  in  the  performance  of  your  duty  if,  being  satisfied  with 
the  evidence,  you  do  not  convict  one  or  both  the  prisoners  of  wilful 
murder,  and  it  is  wilful  murder  of  which  they  are  accused.  [The 
learned  judge  then  proceeded  to  review  the  evidence.  In  the  result 
the  jury  found  a  verdict  of  not  guilty  in  respect  to  each  of  the 
prisoners.]  Verdict,  not  guilty. 


STATE  V.   SMITH. 
Court  of  Appeals  of  South  Carolina.     1847. 

[Reported  2  Strobhart,  77.] 

James  Carter,  on  horseback,  overtook  a  large  and  noisy  crowd  of 
men  and  women  on  foot.  The  prisoner,  one  of  the  crowd,  fired  a 
pistol,  apparently  at  Carter,  but  did  not  hit  him.  The  bullet  struck  and 
killed  a  negro  boy  who  was  sitting  on  a  fence  beside  the  road,  unseen 
by  the  crowd. ^ 

The  prisoner  was  found  guilty  of  murder,  and  appealed,  on  the 
grounds  annexed  :  — 

1.  That  his  Honor,  the  presiding  Judge,  misdirected  the  jury  in  his 
charge,  by  stating  the  law  to  be  "  that  if  the  prisoner  shot  at  Carter, 
designing  some  serious  injury,  as  the  falling  from  his  horse,  it  is 
murder." 

2.  That  his  Honor  charged  the  jury  that  "  if  the  prisoner  shot  at 
Carter  without  intending  to  kill  or  hurt  him,  it  is  manslaughter." 

3.  That  his  Honor  charged  the  jury  that  "they  might  find  the 
prisoner  guilty  of  murder  or  manslaughter,  or  not  guilty." 

4.  That  the  verdict  was  contrary  to  law  and  evidence. 
Miller,  for  the  motion. 

Jlclver,  Solicitor,  contra. 

Evans,  J.  delivered  the  opinion  of  the  court. 

The  jury  having  found  the  prisoner  guilty  of  murder,  there  is  no 
necessity  to  inquire  whether  he  could  have  been  convicted  of  man- 
slaughter on  this  indictment.  The  first  ground  is,  therefore,  the  only 
one  necessary  to  be  considered.  The  proposition  presented  b}'  that 
ground  is  whether,  supposing  the  prisoner  "  shot  at  Carter,  designing 
to  do  him  some  serious  injur}^  as  the  falling  from  his  horse,"  he  is 
guilty  of  the  crime  of  murder.  It  is  not  denied  that  this  question  is 
the  same  as  if  he  had  killed  Carter  instead  of  the  negro,  for  if  one 
design  to  kill  A.  but  b}'  accident  kills  B.  his  crime  is  the  same  as  if 
he  had  executed  his  intended  purpose.     It  will  be  murder,  or  man- 

^  This  statement  is  condensed  from  that  of  the  reporter. 


SECl:  IV.]  COMMONWEALTH   V.    WEBSTER.  461 

slaughter,  or  self-defence,  according  to  the  circumstances.  It  is  very 
clear  tliat  the  intent  with  which  an  act  is  done  very  often  gives  char- 
acter to  the  crime,  but  there  is  a  legal  conclusion  drawn  from  the  facts 
of  the  case,  entirely  independent  of  the  intent  of  the  party.  Thus  it  is 
said  in  2d  Starkie  Ev.  950,  that  "  where  the  defence  is  that  the  death 
was  occasioned  b^-  accident,  the  nature  of  the  act  which  produced  the 
death,  and  the  real  motive  and  intention  of  the  prisoner,  are  the  proper 
subjects  of  evidence,  but  the  conclusion  as  to  llie  quahty  of  the  offence, 
as  founded  upon  such  facts,  is  a  question  of  law."  Tlie  whole  doctrine 
of  constructive  malice  is  founded  on  the  same  principle.  If  the  act 
which  produced  the  death  be  attended  with  such  circumstances  as  are 
the  ordinary  symptoms  of  a  wicked,  depraved,  and  malignant  spirit,  the 
law  from  these  circumstances  will  imply  malice,  without  reference  to 
what  was  passing  in  the  prisoner's  mind  at  the  time  he  committed  the 
act.  If  one  were  to  fire  a  loaded  gun  into  a  crowd,  or  throw  a  piece  of 
heav}'  timber  from  the  top  of  a  house  into  a  street  filled  with  people, 
the  law  would  infer  malice  from  the  wickedness  of  the  act ;  so  also  the 
law  will  impl}-  that  the  prisoner  intended  the  natural  and  probable  conse- 
quences of  his  own  act ;  as,  in  the  case  of  shooting  a  gun  into  a  crowd, 
the  law  will  imply,  from  the  wantonness  of  the  act,  that  he  intended  to 
kill  some  one,  although  it  might  have  been  done  in  sport.  If  the 
prisoner's  object  had  been  nothing  more  than  to  make  Carter's  horse 
throw  him,  and  he  had  used  such  means  onl}-  as  were  appropriate  to 
that  end,  then  there  would  be  some  reason  for  apphing  to  his  case  the 
distinction  that  where  the  intention  was  to  commit  onl3'  a  trespass  or 
a  misdemeanor,  an  accidental  killing  would  be  only  manslaughter.  But 
in  this  case  the  act  done  indicated  an  intention  to  kill ;  it  was  calcu- 
lated to  produce  that  efl^ect,  and  no  other ;  death  was  the  probable 
consequence,  and  did  result  from  it,  and  I  am  of  opinion  there  was  no 
error  in  the  charge  of  the  Circuit  Judge,  that  if  the  prisoner  shot  at 
Carter  the  crime  was  murder,  although  the  prisoner  may  have  designed 
only  to  do  Carter  "■  some  serious  injur}',  as  the  falling  from  his  horse.'' 
The  motion  is  therefore  dismissed. 

RiciiARDSOx,  J.,  O'Neall,  J.,  Wardlaw,  J.,  Frost,  J.,  and  Withers, 
J.,  concurred.  Motion  dismissed. 


COMMONWEALTH  v.  WEBSTER. 
Supreme  Judicial  Court  of  Massachusetts.     1850. 
[Reported  5  Cusli.  296.] 

The  defendant,  profes.sor  of  chemistry  in  the  medical  college  in 
Boston,  attached  to  the  university  at  Cambridge,  was  indicted  in  the 
municipal  court  at  the  January  term,  1850,  for  the  murder  of  Dr.  George 
Parkman,  at  Boston,  on  the  23d  of  November,  1849.  The  indictment 
having  been  transmitted  to  this  court,  as  required  by  the  Rev.  Sts. 


462  COMMONWEALTH    V.   WEBSTER.  [CHAP.  VII, 

c.  136,  §  20,  the  defendant  was  tried  at  the  present  term,  before  the 
Chief  Justice,  and  Justices  Wilde,  Dewey,  and  Metcalf.^ 

The  government  introduced  evidence  that  Dr.  George  Parkman, 
quite  peculiar  in  person  and  manners,  and  ver}^  well  known  to  most 
persons  in  the  cit}^  of  Boston,  left  his  home  in  Walnut  Street,  in  Bos- 
ton, in  the  forenoon  of  the  23d  of  November,  1849,  in  good  health  and 
spirits  ;  and  that  he  was  traced  through  various  streets  of  the  cit}'  until 
about  a  quarter  before  two  o'clock  of  that  day,  when  he  was  seen  going 
towards  and  about  to  enter  the  medical  college.  That  he  did  not  return 
to  his  home.  That  on  the  next  day  a  very  active,  particular,  and  ex- 
tended search  was  commenced  in  Boston  and  the  neighboring  towns 
and  cities,  and  continued  until  the  30th  of  November;  and  that  large 
rewards  were  offered  for  information  about  Dr.  Parkman.  That  on  the 
30th  of  November,  certain  parts  of  a  human  body  were  discovered  in  and 
about  the  defendant's  laboratory  in  the  medical  college  ;  and  a  great 
number  of  fragments  of  human  bones  and  certain  blocks  of  mineral  teeth, 
imbedded  in  slag  and  cinders,  together  with  small  quantities  of  gold, 
which  had  been  melted,  were  found  in  an  assa^'  furnace  of  the  laboi'atory. 
That  in  consequence  of  some  of  these  discoveries  the  defendant  was  ar- 
rested on  the  evening  of  the  30th  of  November.  That  the  parts  of  a 
bod}^  so  found  resembled  in  ever}^  respect  the  corresponding  portions 
of  the  body  of  Dr.  Parkman,  and  that  among  them  all  there  were  no 
duplicate  parts ;  and  that  they  were  not  the  remains  of  a  body  which 
had  been  dissected.  That  the  artificial  teeth  found  in  the  furnace  were 
made  for  Dr.  Parkman  by  a  dentist  in  Boston  in  1846,  and  I'efitted  to 
his  mouth  b3-  the  same  dentist  a  fortnight  before  his  disappearance. 
That  the  defendant  was  indebted  to  Dr.  Parkman  on  certain  notes, 
and  was  pressed  by  him  for  payment;  that  the  defendant  had  said 
that  on  the  23d  of  November,  about  nine  o'clock  in  the  morning,  he 
left  word  at  Dr.  Parkman's  house  that,  if  he  would  come  to  the  medical 
college  at  half-past  one  o'clock  on  that  day,  he  would  pay  him  ;  and 
that,  as  he  said,  he  accordingly  had  an  interview  with  Dr.  Parkman  at 
half-past  one  o'clock  on  that  day,  at  his  laboratory-  in  the  medical  col- 
lege. That  the  defendant  then  had  no  means  of  paying,  and  that  the 
notes  were  afterwards  found  in  his  possession. 

The  opinion  of  the  court  on  the  law  of  the  case  was  given  in  the 
charge  to  the  jury  as  follows :  — 

Shaw,  C.  J.  Homicide,  of  which  murder  is  the  highest  and  most 
criminal  species,  is  of  various  degrees,  according  to  circumstances. 
The  term,  in  the  largest  sense,  is  generic,  embracing  every  mode  by 
which  the  life  of  one  man  is  taken  by  the  act  of  another.  Homicide 
may  be  lawful  or  unlawful ;  it  is  lawful  when  done  in  lawful  war  upon 
an  enemy  in  battle  ;  it  is  lawful  when  done  by  an  officer  in  the  execu- 
tion of  justice  upon  a  criminal,  pursuant  to  a  proper  warrant.  It  may 
also  be  justifiable,  and  of  course  lawful,  in  necessaiy  self-defence.    But 

^  Part  of  the  case  is  omitted.  —  Ed. 


SECT.  IV.J  COMMONWEALTH    V.    WEBSTER.  463 

it  is  not  necessaiT  to  dwell  on  these  distinctions  ;  it  will  be  sufficient 
to  ask  attention  to  the  two  species  of  criminal  homicide,  familiarly 
known  as  murder  and  manslaughter. 

In  seeking  for  the  sources  of  our  law  npon  this  subject,  it  is  proper 
to  sa}',  that  whilst  the  statute  law  of  the  commonwealth  declares  (Rev. 
Sts.  c.  125,  §  1)  that  "Every  person  who  shall  commit  the  crime  of 
murder  shall  suffer  the  punishment  of  death  for  the  same,"  j-et  it  no- 
where defines  the  crimes  of  murder  or  manslaughter,  with  all  their 
minute  and  carefully-considered  distinctions  And  qualifications.  For 
these,  we  resort  to  that  great  repository  of  rules,  principles,  and  forms, 
the  common  law.  This  we  commonly  designate  as  the  common  law  of 
England  ;  but  it  might'  now  be  properly  called  the  common  law  of 
Massachusetts.  It  was  adopted  when  our  ancestors  first  settled  here, 
by  general  consent.  It  was  adopted  and  confirmed  by  an  early  act  of 
the  provincial  government,  and  was  formally  confirmed  by  the  provis- 
ion of  the  constitution  (c.  6,  art.  6)  declaring  that  all  the  laws  which 
had  theretofore  been  adopted,  used,  and  approved,  in  the  province  or 
state  of  Massachusetts  ba}',  and  usually  practiced  on  in  the  courts  of 
law,  should  still  remain  and  be  in  full  force  until  altered  or  repealed  by 
the  legislature.  So  far,  therefore,  as  the  rules  and  principles  of  the 
common  law  are  applicable  to  the  administration  of  criminal  law,  and 
have  not  been  altered  and  modified  by  acts  of  the  colonial  or  provincial 
government,  or  by  the  state  legislature,  they  have  the  same  force  and 
effect  as  laws  formally'  enacted. 

By  the  existing  law,  as  adopted  and  practiced  on,  unlawful  homicide 
is  distinguished  into  murder  and  manslaughter. 

Murder,  in  the  sense  in  which  it  is  now  understood,  is  the  killing  of 
any  person  in  the  peace  of  the  commonwealth,  with  malice  afore- 
thought, eitlier  express  or  implied  by  law.  Malice,  in  this  definition, 
is  used  in  a  technical  sense,  including  not  only  anger,  hatred,  and 
revenge,  but  every  other  unlawful  and  unjustifiable  motive.  It  is  not 
confined  to  ill-will  towards  one  or  more  individual  persons,  but  is  in- 
tended to  denote  an  action  flowing  from  an}'  wicked  and  corrupt 
motive,  a  thing  done  malo  animo.  where  the  fact  has  been  attended 
with  such  circumstances  as  carry  in  them  the  plain  indications  of  a 
heart  regardless  of  social  duty,  and  fatally  bent  on  mischief.  And 
therefore  malice  is  implied  from  any  deliberate  or  cruel  act  against 
another,  however  sudden. 

Manslaugliter  is  the  unlawful  killing  of  another  without  malice  ;  and 
may  be  either  voluntary,  as  when  the  act  is  committed  with  a  real 
design  and  purpose  to  kill,  but  through  the  violence  of  sudden  passion, 
occasioned  by  some  great  provocation  which,  in  tenderness  for  the 
frailty  of  human  nature,  the  law  considers  sufficient  to  palliate  the 
criminality  of  the  oflfence  ;  or  involuntary,  as  when  the  death  of  another 
is  caused  by  some  unlawful  act,  not  accompanied  by  any  intention  to 
take  life. 

From  these  two  definitions  it  will  be  at  once  perceived  that  the 


464  COMMONWEALTH    V.    WEBSTER.  [CHAP.  VII. 

characteristic  distinction  between  murder  and  manslaugliter  is  malice, 
express  or  implied.  It  therefore  becomes  necessarj'  in  ever}'  case  of 
homicide  proved,  and  in  order  to  an  intelligent  inquiry  into  the  legal 
character  of  the  act,  to  ascertain  with  some  precision  the  nature  of  legal 
malice,  and  what  evidence  is  requisite  to  establish  its  existence. 

Upon  this  subject  the  rule,  as  deduced  from  the  authorities,  is  that 
the  implication  of  malice  arises  in  every  case  of  intentional  homicide  ; 
and,  the  fact  of  killing  being  first  proved,  all  the  circumstances  of  acci- 
dent, necessit}",  or  infirmity,  are  to  be  satisfactorily  established  by  the 
part}'  charged,  unless  they  arise  out  of  the  evidence  produced  against 
him  to  prove  the  homicide  and  the  circumstances  attending  it.  If  there 
are,  in  fact,  circumstances  of  justification,  excuse,  or  palliation,  such 
proof  will  naturally  indicate  them.  But  where  the  fact  of  killing  is 
proved  by  satisfactory  evidence,  and  there  are  no  circumstances  dis- 
closed tending  to  show  justification  or  excuse,  there  is  nothing  to  rebut 
the  natural  presumption  of  malice.  This  rule  is  founded  on  the  plain 
and  obvious  principle  that  a  person  must  be  presumed  to  intend  to  do 
that  which  he  voluntarily  and  wilfully  does  in  fact  do,  and  that  he  must 
intend  all  the  natural,  probable,  and  usual  consequences  of  his  own 
acts.  Therefore,  when  one  person  assails  another  violently  with  a 
dangerous  weapon  likely  to  kill,  and  which  does  in  fact  destroy  the 
life  of  the  party  assailed,  the  natural  presumption  is  that  he  intended 
death  or  other  great  bodily  harm  ;  and,  as  there  can  be  no  presump- 
tion of  any  proper  motive  or  legal  excuse  for  such  a  cruel  act,  the  con- 
sequence follows  that,  in  the  absence  of  all  proof  to  the  contrary',  there 
is  nothing  to  rebut  the  presumption  of  malice.  On  the  other  hand,  if 
death,  though  wilfuUv  intended,  was  inflicted  immediately  after  provo- 
cation given  by  the  deceased,  supposing  that  such  provocation  consisted 
of  a  blow  or  an  assault,  or  other  provocation  on  his  part,  which  the  law 
deems  adequate  to  excite  sudden  and  angry  passion  and  create  heat  of 
blood,  this  fact  rebuts  the  presumption  of  malice  ;  but  still,  the  homi- 
cide being  unlawful,  because  a  man  is  bound  to  curb  his  passions,  is 
criminal,  and  is  manslaughter. 

In  considering  what  is  regarded  as  such  adequate  provocation,  it  is 
a  settled  rule  of  law  that  no  provocation  by  words  only,  however 
opprobrious,  will  mitigate  an  intentional  homicide  so  as  to  reduce  it  to 
manslaughter.  Therefore,  if,  upon  provoking  language  given,  the  party 
immediately  revenges  himself  by  the  use  of  a  dangerous  and  deadly 
weapon  likely  to  cause  death,  such  as  a  pistol  discharged  at  the  person, 
a  heavy  bludgeon,  an  axe,  or  a  knife,  if  death  ensues,  it  is  a  homicide 
not  mitigated  to  manslaughter  b}^  the  circumstances,  and  so  is  homicide 
by  malice  aforethought  within  the  true  definition  of  murder.  It  is  not 
the  less  malice  aforethought,  within  the  meaning  of  the  law,  because 
the  act  is  done  suddenly  after  the  intention  to  commit  the  homicide 
is  formed  ;  it  is  suflScient  that  the  malicious  intention  precedes  and 
accompanies  the  act  of  homicide.  It  is  manifest,  therefore,  that  the 
words   "malice  aforethought,"  in  the  description  of  murder,  do  not 


SECT.  IV.]  HADLEY   V.    STATE.  465 

imply  deliberation,  or  the  lapse  of  considerable  time  between  the  mali- 
cious intent  to  take  life  and  the  actual  execution  of  that  intent,  but 
rather  denote  purpose  and  design  in  contradistinction  to  accident  and 
miscliance. 

In  speaking  of  the  use  of  a  dangerous  weapon,  and  the  mode  of  usinof 
it  upon  the  person  of  another,  I  have  spoken  of  it  as  indicating  an  in- 
tention to  kill  him,  or  do  him  great  bodily  harm.  The  reason  is  this  : 
Where  a  man,  without  justification  or  excuse,  causes  the  death  of  an- 
other by  the  intentional  use  of  a  dangerous  weapon  likelj'  to  destroy 
life,  he  is  responsible  for  the  consequences,  upon  the  principle  already 
stated,  that  he  is  liable  for  the  natural  and  probable  consequences  of 
his  act.  Suppose,  therefore,  for  the  purpose  of  revenge,  one  fiies  a 
pistol  at  another,  regardless  of  consequences,  intending  to  kill,  maim, 
or  grievousl}'  wound  him,  as  the  case  may  be,  without  any  definite  inten- 
tion to  take  his  life  ;  j-et,  if  that  is  the  result,  the  law  attributes  the 
same  consequences  to  homicide  so  committed,  as  if  done  under  an  actual 
and  declared  purpose  to  take  the  life  of  the  part}'  assailed.  .   .  . 

The  true  nature  of  manslaughter  is  that  it  is  homicide  mitigated  out 
of  tenderness  to  the  frailty  of  human  nature.  Every  man,  when  as- 
sailed with  violence  or  great  rudeness,  is  inspired  with  a  sudden  impulse 
of  anger,  which  puts  him  upon  resistance  before  time  for  cool  reflec- 
tion ;  and  if,  during  that  period,  he  attacks  his  assailant  with  a  weapon 
likeh'  to  endanger  life,  and  death  ensues,  it  is  regarded  as  done  through 
heat  of  blood,  or  violence  of  anger,  and  not  through  malice,  or  that 
cold-blooded  desire  of  revenge  which  more  properly  constitutes  the 
feeling,,  emotion,  or  passion  of  malice. 

The  same  rule  applies  to  homicide  in  mutual  combat,  which  is  attrib- 
uted to  sudden  and  violent  anger  occasioned  by  the  combat,  and  not  to 
malice.  When  two  meet,  not  intending  to  quarrel,  and  angry  words 
suddenl}^  arise,  and  a  conflict  springs  up  in  which  blows  are  given  on 
both  sides,  without  much  regard  to  who  is  the  assailant,  it  is  a  mutual 
combat.  And  if  no  unfair  advantage  is  taken  in  the  outset,  and  the  oc- 
casion is  not  sought  for  the  purpose  of  gratif^'ing  malice,  and  one  seizes 
a  weapon  and  strikes  a  deadly  blow,  it  is  regarded  as  homicide  in  heat 
of  blood  ;  and  though  not  excusable,  because  a  man  is  bound  to  control 
his  angry  passions,  yet  it  is  not  the  higher  offence  of  murder. 


HADLEY  V.   STATE. 

Supreme  Court  op  Alabama.     1876. 

[Reported  55  Alabama,  31,] 

Stone,  J.^ —  Mr.  Wharton,  the  able  author  of  the  works  on  Criminal 
Law,  and  on  Homicide,  has  contributed  an  article  to  the  "  Forum," 
April  number,  1875,  in  which  he  attempts  to  show  that  there  has  been 

'  Part  of  the  opinion  only  is  given. 


466  HAULEY  V.   STATE.  [CHAP.  VII. 

a  revolution  in  criminal  law,  in  the  matter  of  presumed  malice.  In 
his  work  on  Homicide,  2d  ed.,  §  671,  he  asserts  the  same  doctrine,  and 
sajs,  "■  If  it  be  said  that  the  use  of  a  weapon,  likel}'  to  inflict  a  mortal 
blow,  implies,  as  a  presumption  of  law,  in  its  teclmical  sense,  a  deadly 
design,  this  is  an  error;  and  a  fortiori  is  it  so  when  it  is  said  the  use 
of  such  a  weapon  implies  a  malicious  design," 

Malice,  design,  and  motive,  are,  as  a  rule,  but  inferential  facts. 
They  are  inferred  from  facts  and  circumstances  positivel}-  proven.  If 
direct,  positive  proof  of  them  were  required,  it  could  rarely  be  given. 
Still,  we  know  they  exist ;  and  when  sufficient  facts  are  in  evidence  to 
justify  us  in  drawing  such  inference,  we  rest  as. securely  in  the  convic- 
tion as  if  it  were  forced  upon  us  hy  positive  proof  The  measure  of 
evidence,-  however,  to  justify  such  abiding  conviction,  must  be  very 
full,  —  so  full  as  to  exclude  everj'  other  reasonable  hypothesis. 

That  every  one  must  be  held  to  intend  the  known  consequences  of 
his  intentional  act,  is  a  recognized  canon  of  moral  accountability,  and 
of  municipal  law.  Malice,  as  an  ingredient  of  murder,  is  but  a  formed 
design,  by  a  sane  mind,  to  take  life  unlawfully,  without  such  impending 
danger,  to  be  averted  thereby,  as  will  render  it  excusable,  and  with- 
out such  provocation  as  will  repel  the  imputation  of  formed  design. 
Hence,  when  life  is  taken  b^-  the  direct  use  of  a  deadl}'  weapon,  the 
canon,  stated  above,  comes  to  its  aid  ;  and,  if  there  be  nothing  else  in 
the  transaction  —  no  qualifying  or  explanatory  circumstance  —  the  con- 
clusion is  iiresistible  that  the  killing  was  done  pursuant  to  a  formed 
design,  —  in  other  words,  with  malice  aforethought ;  for  malice,  in  such 
connection,  is  but  the  absence  of  impending  peril  to  life  or  member, 
which  would  excuse  the  homicide,  and  of  sufficient  provocation  to  repel 
the  imputation  of  its  existence. 

In  Foster's  Crown  Law,  it  is  said,  "  In  ever}^  charge  of  murder,  the 
fact  of  killing  being  first  proved^  all  the  circumstances  of  accident, 
necessity,  or  infirmity,  are  to  be  satisfactorily  proved  by  the  prisoner, 
unless  they  arise  out  of  the  evidence  produced  against  him  ;  for  the  law 
presumeth  the  fact  to  have  been  founded  in  malice,  until  the  contrary 
appeareth  ;  and  very  right  it  is  that  the  law  should  so  presume."  The 
same  doctrine  is  affirmed  in  all  the  older  writers  and  adjudications  on 
criminal  law. 

Sir  Wm.  Blackstone  (4  Com.  201)  says:  "  We  may  take  it  for  a 
general  rule  that  all  homicide  is  malicious,  and,  of  course,  amounts 
to  murder,  unless  when  justified,  excused,  or  alleviated  into  man- 
slaughter ;  and  all  these  circumstances  of  justification,  excuse,  or 
alleviation,  it  is  incumbent  on  the  prisoner  to  make  out  to  the  satisfac- 
tion of  the  court  and  jury." 

In  the  case  of  Webster  v.  Commonwealth,  5  Cush.  206,  the  case 
stood  on  the  naked  proof  of  the  homicide,  without  any  of  the  attendant 
circumstances.     Ch.  J.  Shaw  declared  the  law  as  above  quoted. 

The  case  of  People  v.  Schryver,  42  N.  Y.  1,  is  a  very  careful  and 
full  collection  and  collation  of  authorities,  English  and  American,  and 


SECT.  V.J  DEGREES   OF    MUKDER.  467 

fullv  sustains  the  doctrine  aJjove  declared.  See  also  Tweedy  v.  State, 
5  Iowa,  433  ;  Silvus  v.  State,  22  Ohio  St.  90.  Tlie  case  of  Stokes  v. 
The  People,  53  N.  Y.  1G4,  properly  understood,  is  not  materially 
opposed  to  this  view.  The  charge  of  the  judge  in  that  case  invaded 
the  province  of  the  jury  ;  and,  in  addition  to  this,  the  case  was  made  to 
turn  materially  on  the  statutes  of  New  York.  The  charge  in  tliat  case 
went  much  beyond  the  principle  above  copied  from  the  old  authors. 

The  charge  in  the  present  case  is  precisely  that  which  was  given  in 
the  case  of  Murphy  v.  The  State,  37  Ala.  142.  In  that  case  this  court 
held  that  the  charge  was  free  from  error.  We  are  unwilling  to  depart 
from  that  decision,  and,  in  doing  so,  from  an  old  landmark  which  has 
for  centuries  withstood  the  test  of  time,  and  the  combined  wisdom  of 
jurists  on  both  sides  of  the  Atlantic.  There  is  a  lamentable  and  grow- 
ing laxity  in  the  administration  of  the  criminal  law,  which  is  seen  and 
deplored  by  all  good  men.  Life  is  not  sufficiently  cared  for;  its 
destruction  not  punished  with  sufficient  severity.  Until  the  reckless 
and  rash  are  taught,  by  firm  judges  and  stern  juries,  that  the  slayer  of 
his  brother  can  invoke  the  shield  of  self-defence  only  when,  without 
sufficient  provocation  from  him,  his  life  was  in  peril,  or  his  body 
exposed  to  grievous  injury  ;  that  homicide  by  him  cannot  be  mitigated 
to  the  lesser  offence  of  manslaughter,  unless  the  jury  are  convinced 
that  the  killing  was  unpremeditated,  and  the  result  of  sudden  passion, 
excited  by  present  injury  more  grievous  than  words,  we  fear  that  the 
calendar  of  bloody  crimes  is  destined  to  know  no  diminution  in  its 
numbers.  The  terrors  of  certain  punishment  are  the  only  sure  means 
of  restraining  the  evil-minded. 


SECTION   V. 
Degrees  of  Murder. 

Revised  Laws  of  Massachusetts,  ch.  207,  Sect.  1.  Murder  com- 
mitted with  deliberately  premeditated  malice  aforethought  or  with 
extreme  atrocity  or  cruelty,  or  in  the  commission  or  attempted  com- 
mission of  a  crime  punishable  with  death  or  imprisonment  for  life,  is 
murder  in  the  first  degree.  Murder  which  does  not  appear  to  be  in  the 
first  degree  is  murder  in  the  second  degree.  The  degree  of  murder 
shall  be  found  by  the  jur}'. 

Penal  Code  of  New  York,  Sects.  183,  184.  The  killing  of  a  human 
being,  unless  it  is  excusable  or  justifiable,  is  murder  in  the  first  degree 
when  committed  either  from  a  deliberate  and  premeditated  design  to 
effect  the  death  of  the  person  killed,  or  of  another;  or  b}-  an  act 
imminently  dangerous  to  others,  and  evincing  a  depraved  mind,  regard 


468  LEIGHTON    V.   PEOPLE.  [CHAP.   VII. 

less  of  human  life,  although  without  a  premeditated  design  to  effect  the 
death  of  any  individual ;  or  without  a  design  to  effect  death,  by  a 
person  engaged  in  tlie  commission  of,  or  in  an  attempt  to  commit  a 
felony,  either  upon  or  affecting  the  person  killed  or  otherwise  ;  or  when 
perpetrated  in  committing  the  crime  of  arson  in  the  first  degree.  Such 
killing  of  a  human  being  is  murder  in  the  second  degree  when  com- 
mitted with  a  design  to  effect  the  death  of  the  person  killed,  or  of 
another,  but  without  deliberation  and  premeditation. 


LEIGHTON  V.  PEOPLE. 
Court  op  Appeals  of  New  York.     1882. 

{Reported  88  Neio  York,  117.] 

Error  to  the  General  Term  of  the  Supreme  Court  in  the  first  judicial 
department,  to  review  judgment  entered  upon  an  order  made  May  20, 
1881,  which  affirmed  a  judgment  of  the  Court  of  Oyer  and  Terminer 
of  the  County  of  New  York,  entered  upon  a  verdict  convicting  the 
plaintiff  in  error  of  the  crime  of  murder  in  the  first  degree. 

The  material  facts  appear  in  the  opinion.^ 

Danforth,  J.  At  its  close  the  prisoner's  counsel  "  excepted  to 
all  portions  of  the  charge  in  reference  to  the  question  of  the  time 
required  for  premeditation  and  deliberation."  To  bring  the  case  within 
the  statutory  definition  of  murder  in  the  first  degree  it  was  necessary 
that  the  crime  should  be  "  perpetrated  from  the  deliberate  and  pre- 
meditated design  to  effect  the  death  of  the  person  killed."  Laws  of 
1873,  chap.  644,  §  5.  An  act  co-existent  with  and  inseparable  from  a 
feudden  impulse,  although  premeditated,  could  not  be  deemed  deliberate, 
as  when  under  sudden  and  great  provocation  one  instantly,  although 
intentionally,  kills  another.  But  the  statute  is  not  satisfied  unless  the 
intention  was  deliberated  upon.  If  the  impulse  is  followed  by  reflec- 
tion, that  is  deliberation  ;  hesitation  even  may  imply  deliberation  ;  so 
may  threats  against  another  and  selection  of  means  with  which  to  per- 
petrate the  deed.  If,  therefore,  the  killing  is  not  the  instant  effect  of 
impulse,  if  there  is  hesitation  or  doubt  to  be  overcome,  a  choice  made 
as  the  result  of  thought,  however  short  the  struggle  between  the  inten- 
tion and  the  act,  it  is  sufficient  to  characterize  the  crime  as  deliberate 
and  premeditated  murder. 

The  charge  upon  this  point  was  most  favorable  to  the  prisoner. 
After  stating  the  statute  (siqwa)  the  judge  said  :  "  There  must  therefore 
be,  in  order  to  establish  the  crime  of  murder  in  the  first  degree,  delibera- 
tion and  premeditation  ;  but  there  is  no  time  prescribed  within  which 

1  Only  so  much  of  the  case  as  relates  to  the  degree  of  the  murder  is  given. 


SECT.  VL]  lord   MORLY'S   CASE.  469 

these  operations  of  the  mind  must  occur;  it  is  sufficient  if  their  exercise 
was  accomplished  when  the  deed  was  done  resulting  in  the  death." 
Again  he  said  :  ''It  is  enough  if  there  is  time  for  the  mind  to  think 
upon,  to  consider  the  act  of  killing,  to  meditate  upon  it,  to  weigh  it, 
and  then  to  determine  to  do  it."  Immediately  after  this  follows  that 
portion  of  the  charge  to  which  the  learned  counsel  for  the  appellant 
directs  our  attention.  "For  example,"  said  the  judge,  "  if  I,  having 
from  any  reason,  it  matters  not  what,  an  enmity  toward  anotlier,  should 
start  from  this  point  and  walk  to  the  corner  of  Chambers  Street,  weigh 
in  my  mind,  deliberate  upon,  and  premeditate  a  deadly  assault  upon 
another,  and  at  that  corner,  meeting  there  the  person  toward  whom  my 
thoughts  were  directed,  I  struck  the  deadly  blow,  that  would  be  suffi- 
cient deliberation  and  sufficient  premeditation  to  perfect  the  crime  of 
murder  in  the  first  degree.  It  is  enough  that  the  mind  operates  in  these 
two  respects  to  accomplish  it  and  to  present  all  the  elements  that  are 
necessary  to  establish  murder  in  the  first  degree." 

In  this  there  was  no  error.  Then  followed  a  statement  of  the  evi- 
dence bearing  upon  the  proposition  just  laid  down.  It  has  been  recited 
in  the  learned  and  elaborate  opinion  of  the  court  below,  its  correctness 
has  not  been  denied  by  the  appellant's  counsel,  and  it  need  not  be 
repeated.  It  was  in  our  opinion  quite  enough  for  submission  to  the 
jury. 


SECTION  VI. 

Manslaughter. 

LORD   MORLY'S   CASE. 
Resolution  of  the  Judges.     1666. 

[Reported  Kelyng,  53.] 

Memorandum,  that  upon  Saturday  the  28th  of  April,  1666,  Ann.  18 
Car.  2,  all  the  judges  of  England,  viz.,  myself,  J.  K.,  Lord  Chief  Jus- 
tice of  the  King's  Bench  ;  Sir  Orl.  Bridgman,  Lord  Chief  Justice  of 
the  Common  Pleas  ;  Sir  Matthew  Hales,  Chief  Baron  of  the  Exchequer  ; 
my  brother  Atkins,  Brother  Twisden,  Brother  Tyrell,  Brother  Turner, 
Brother  Browne,  Brother  Windham,  Brother  Archer,  Brother  Rainsford, 
and  Brother  Morton,  met  together  at  Serjeant's  Inn  in  Fleet  Street,  to 
consider  of  such  things  as  might  in  point  of  law  fall  out  in  the  trial  of 
the  Lord  Morly,  who  was  on  Monday  to  be  tried  by  his  peers  for  a 
murder  ;  and  we  did  all  una  voce  resolve  several  things  following  :  — 

7.^  Agreed,  that  no  words,  be  they  what  they  will,  are  in  law  such 
a  provocation  as,  if  a  man  kill  another  for  words  only,  will  diminish  the 

1  Only  the  7th  and  8th  resolutions  are  given. 


470  huggett's  case,  [ckap.  vn. 

offence  of  killing  a  man  from  murder  to  be  manslaughter ;  as  suppose 
one  call  another  son  of  a  whore,  or  give  him  the  lie,  and  thereupon  he 
to  whom  the  words  are  given,  kill  the  other,  this  is  murder.  But  if 
upon  ill  words,  both  the  parties  suddenly  fight,  and  one  kill  the  otlier, 
this  is  but  manslaughter,  for  it  is  a  combat  betwixt  two  upon  a  sudden 
heat,  which  is  the  legal  description  of  manslaughter ;  and  we  were  all 
of  opinion  that  the  statute  of  1  Jac.  for  stabbing  a  man  not  having  first 
struck,  nor  having  any  weapon  drawn,  was  onl}'  a  declaration  of  the 
common  law,  and  made  to  prevent  the  inconveniencies  of  juries,  who 
were  apt  to  believe  that  to  be  a  provocation  to  extenuate  a  murder 
which  in  law  was  not. 

8.  Agreed,  that  if  upon  words  two  men  grow  to  anger,  and  afterwards 
the}-  suppress  that  anger,  and  then  fall  into  other  discourses,  or  have 
other  diversions  for  such  a  space  of  time  as  in  reasonable  intendment 
their  heat  might  be  cooled,  and  some  time  after  the}'  draw  one  upon 
another,  and  fight,  and  one  is  killed,  this  is  murder,  because  being 
attended  with  such  circumstances  as  it  is  reasonably  supposed  to  be  a 
deliberate  act,  and  a  premeditated  revenge  upon  the  first  quarrel ;  but 
the  circumstances  of  such  an  act  being  matter  of  fact,  the  jury  are 
judges  of  those  circumstances.  , 


HUGGETT'S  CASE. 
Crown  Case  Reserved.     1666. 

[Reported  Kehjng,  59.] 

»  At  a  gaol-delivery  at  Newgate,  25  April,  1666,  18  Car.  2,  upon 
^jj  indictment  of  murder  against  Hopkin  Huggett,  a  special  verdict  was 
found  to  this  effect :  We  find  that  John  Berrv,  and  two  others  with 
him,  the  day  and  place  in  the  inquisition,  had  de  facto ^  but  witliout  war- 
rant (for  aught  appears  to  us),  impressed  a  man  whose  name  is  not  yet 
known,  to  serve  in  his  Majest3''s  service  in  the  wars  against  the  Dutch 
nation  ;  that  thereupon,  after  the  unknown  man  was  impressed,  he  with 
the  said  John  Berry,  went  together  quietly  into  Cloth-fair ;  and  the  said 
Hopkin  Huggett  and  three  others,  walking  together  in  the  rounds  in 
Smithfield,  and  seeing  the  said  Berry  and  two  others  with  the  man  im- 
pressed, going  into  Cloth-fair,  instantl}'  pursued  after  them,  and  over- 
taking Berr}^  and  the  impressed  man  and  the  two  other  men,  required 
to  see  their  waiTant,  and  Berry  showed  them  a  paper  which  Hopkin 
Huggett  and  the  three  others  said  was  no  warrant ;  and  immediately 
the  said  H.  Huggett  and  the  three  others  drew  their  swords  to  rescue 
the  said  man  impressed,  and  did  thrust  at  the  said  John  Berr}' ;  and 
thereupon  the  said  John  Berr}'  and  the  two  others  with  him  did  draw 
their  swords  and  fight  together ;  and  thereupon  the  said  H.  Huggett 
did  give  the  wound  in  the  inquisition  to  the  said  John  Berry,  whereof 


SECT.  VI.]  HUGGETT's    CASE.  47x 

he  instantly  died  ;  and  if  upon  the  whole  matter,  the  said  H.  Hug- 
gett  be  guilty  of  murder  they  find  so  ;  if  of  manslaughter  they  find  so, 
&c.  All  the  judges  of  England  being  met  together,  at  Serjeant's  Inn, 
in  Fleet  Street,  upon  other  occasions  (and  before  that  time  having 
copies  of  this  special  verdict  sent  unto  them),  after  the  other  business 
dispatched  they  were  desired  to  give  their  opinions  in  this  case, 
whether  they  held  it  to  be  murder  or  manslaughter.  And  the  Lord 
Chief  Justice  Bridgman,  Lord  Chief  Baron  Hales,  my  brother  Atkins, 
Brother  Tyrell,  Brother  Turner,  Brother  Browne,  Brother  Archer,  and 
Brother  Rainsford,  having  had  the  notes  of  the  special  verdict  three  days 
before,  delivered  their  opinion  as  then  advised,  but  they  said  they 
would  not  be  bound  by  it :  that  this  was  no  murder,  but  only  man- 
slaughter ;  and  they  said  that  if  a  man  be  unduly  arrested  or  restrained 
of  his  liberty  by  three  men,  although  he  be  quiet  himself,  and  do  not  en- 
deavor any  rescue,  yet  this  is  a  provocation  to  all  other  men  of  Eng- 
land, not  only  his  friends  but  strangers  also,  for  common  humanity  sake, 
as  my  Lord  Bridgman  said,  to  endeavor  his  rescue  ;  and  if  in  such 
endeavor  of  rescue  they  kill  any  one,  this  is  no  murder,  but  only  man- 
slaughter ;  and  my  brother  Browne  seemed  to  rely  on  a  case  in  Coke 
12  Rep.  p.  87,  where  divers  men  were  playing  at  bowls,  and  two  of 
them  fell  out  and  quarrelled,  one  with  another,  and  a  third  man  who 
had  no  quarrel,  in  revenge  of  his  friend  struck  the  other  with  a  bowl, 
of  which  blow  he  died  ;  this  was  held  to  be  only  manslaughter.  But 
myself,  Brother  Twisden,  Brother  Windham,  and  Brother  Morton, 
were  of  another  opinion  ;  and  we  held  it  to  be  a  murder,  because  there 
was  (as  we  thought)  no  provocation  at  all.  And  if  one  man  assault 
another  without  provocation,  and  kill  him,  this  is  murder ;  the  law  in 
that  case  implying  malice.  And  we  find  it  was  resolved  by  all  the 
judges  in  the  Lord  Morly's  case  that  no  words,  be  they  what  they 
will,  were  such  a  provocation  in  law  as,  if  upon  them  one  kills  another, 
would  diminish  or  lessen  the  offence  from  being  murder  to  be  but  man- 
slaughter^ As  if  one  calleth  another  son  of  a  whore,  and  giveth  him 
tlie  lie,  and  upon  those  words  the  other  kill  him  that  gave  the  words  ; 
this,  notwithstanding  those  words,  is  murder ;  and  we  thought  those 
words  were  apter  to  provoke  a  man  to  kill  another  than  the  bare  see- 
ing a  man  to  be  unduly  pressed  when  the  party  pressed  willingly  renders 
himself.  But  we  held  that  such  a  proA^ocation  as  must  take  off  the  kill- 
ing of  a  man  from  murder  to  be  but  manslaughter,  must  be  some  open 
violence,  or  actual  striving  with,  or  striking  one  another;  and  that 
answers  the  case  cited  by  my  brother  Browne.  For  there  it  must  be 
intended  that  the  two  men  that  fell  out  were  actually  fighting  together ; 
for  if  there  passed  only  words  betwixt  these  two,  and  upon  them,  a 
third  person  struck  one  of  them  with  a  bowl,  and  killed  him,  we  held 
that  to  be  murder.  And  to  this  my  Lord  Bridgman  and  the  other 
judges  agreed,  and  we  thought  the  case  in  question  to  be  much  the 
stronger,  because  the  party  himself  who  was  impressed  was  quiet,  and 
made  no  resistance,  and  they  who  meddled  were  no  friends  of  his,  or 


472  huggett's  case.  [chap.  vii. 

acquaintance,  but  were  strangers,  and  did  not  so  much  as  desire  them 
which  had  him  in  custody  to  let  him  go,  but  presently  without  more 
ado,  drew  their  swords  at  them,  and  ran  at  them.  And  we  thought  it 
to  be  of  dangerous  consequence  to  give  an}-  encouragement  to  private 
men  to  take  upon  themselves  to  be  the  assertors  of  other  men's  liberties, 
and  to  become  patrons  to  rescue  them  from  wrong ;  especially  in  a  na- 
tion where  good  laws  are  for  the  punishment  of  all  such  injuries,  and  one 
great  end  of  law  is  to  right  men  by  peaceable  means,  and  to  dis- 
countenance all  endeavors  to  right  themselves,  much  less  other  men  by 
force. 

Secondly,  we  four  were  of  opinion  that  if  A.  assault  B,  without  any 
provocation,  and  draw  his  sword  at  him,  and  run  at  him  ;  and  then  B. 
to  defend  himself  draw  his  sword,  and  they  figlit  together.  If  A.  kill 
B.  it  is  murder,  and  B.  drawing  his  sword  to  defend  himself  sliall 
not  lessen  the  offence  of  A.  from  being  murder  to  be  manslaughter 
onl}' ;  and  to  this  the  other  judges  did  (as  I  take  it)  agree,  for  it  were 
unreasonable  that  if  one  man  draw  upon  another,  and  run  at  him  with- 
out an}'  provocation  that  the  other  man  should  stand  still,  and  not 
defend  himself,  and  it  is  also  unreasonable  that  his  endeavor  to  defend 
himself  should  lessen  the  offence  of  him  who  set  upon  him  without  prov- 
ocation. 

But  we  four  held  that  if  two  men  be  quarrelling,  and  actuall}'  fight- 
ing together,  and  anotlier  man  runneth  in  to  aid  one  of  them  and  kill  the 
other,  this  is  but  manslaughter,  because  there  was  an  actual  fighting 
and  striving  with  violence. 

So  we  held,  if  such  people  who  are  called  spirits  take  up  a  youth,  or 
other  person  to  carry  him  awa}',  and  thereupon  there  is  a  tumult  raised, 
and  several  persons  run  in,  and  there  is  a  man  killed  in  the  fra}-,  this 
is  but  manslaughter  ;  for  there  is  an  open  affra\-,  and  actual  force,  which 
is  a  sudden  provocation,  and  so  that  death  which  ensueth  is  but  man- 
slaughter. But  where  people  are  at  peace,  there,  if  another  man  upon 
suspicion  that  an  injur}-  is  done  to  one  of  them,  will  assault  and  kill 
him  whom  he  thinketh  did  the  injury,  this  is  murder,  so  that  we  hold 
nothing  but  an  open  affray  or  striving  can  be  a  provocation  to  any  per- 
son to  meddle  with  an  injury  done  to  another,  if  in  that  meddling  he 
kill  a  man,  to  diminish  or  lessen  the  offence  from  murder  to  man- 
slaugliter. 

Memorandum  :  After  this  difference  I  granted  a  certioi'ari  to  remove 
the  cause  into  the  King's  Bench,  to  be  argued  there,  and  to  receive  a 
final  and  legal  determination  ;  and  although  all  the  judges  of  the  court 
were  clearly  of  opinion  that  it  was  murder,  3-et  it  being  in  case  of  life, 
we  did  not  think  it  prudent  to  give  him  judgment  of  death,  but  admitted 
him  to  his  clergy ;  and  after  he  read,  and  was  burnt  in  the  hand, 
we  ordered  him  to  lie  in  prison  eleven  months  without  bail,  and  after- 
wards until  he  found  sureties  to  be  of  the  good  behavior  during  his  life.^ 

1  See  on  this  point  the  correspondence  between  Seymour,  Q.  C,  and  others  and 
Blackburn,  J  ,  printed  in  note  IX.  to  Stephen's  Digest  of  Cr  Law.  —  Ed. 


SECT.  VI.]  REX    V.    THOMPSON.  473 


REGINA   V.   STEDMAN. 
Old  Bailet.     1704. 

[Reported  Foster  Cr.  L.  292.] 

There  being  an  affra}-  in  the  street,  one  Stedman,  a  footsoldier,  ran 
liastily  towards  tlie  combatants.  A  woman  seeing  him  run  in  that 
manner  cried  out,  "  You  will  not  murder  the  man,  will  you?  "  Stedman 
replied,  "What  is  that  to  \ou,  you  bitch?"  The  woman  thereupon 
gave  him  a  box  on  the  ear,  and  Stedman  struck  her  on  the  breast  with 
the  pommel  of  his  sword.  The  woman  then  fled,  and  Stedman  pursu- 
ing her  stabbed  her  in  the  back.  Holt  was  at  first  of  opinion,  that  this 
was  murder,  a  single  box  on  the  ear  from  a  woman  not  being  a  suffi- 
cient provocation  to  kill  in  this  manner,  after  he  had  given  her  a  blow 
in  return  for  the  box  on  the  ear ;  and  it  was  proposed  to  have  the 
matter  found  specially  :  but  it  afterwards  appearing  in  the  progress  of 
the  trial,  that  the  woman  struck  the  soldier  in  the  face  with  an  iron 
patten,  and  drew  a  great  deal  of  blood,  it  was  holden  clearly  to  be  no 
more  than  manslaughter. 

The  smart  of  the  man's  wound,  and  the  efl"usion  of  blood  might  pos- 
sibly keep  his  indignation  boiling  to  the  moment  of  the  fact. 


FRAY'S   CASE. 
Old  Bailey,  coram  Gould,  J.     1785. 

[Reported  1  East  P.  C.  236.] 

Where  one,  having  had  his  pocket  picked,  seized  the  ofl!ender,  and 
being  encouraged  by  a  concourse  of  people,  threw  him  into  an  adjoin- 
ing pond  by  way  of  avenging  the  theft  by  ducking  him,  but  without 
any  apparent  intention  of  taking  away  his  life,  and  the  pickpocket  was 
drowned,  this  was  ruled  to  be  manslaughter  only. 


REX   V.    THOMPSON. 

Crown  Case  Reserved.     1825. 

[Reported  1  Moodi/  C.  C.  80.] 

The  prisoner  was  tried  before  Mr.  Baron  Garrow  at  the  Winter 
Assizes  at  Maidstone,  in  the  year  1825,  upon  an  indictment  which 
charged   him,    first,   with    maliciously   stabbing   and    cutting   Richard 


474  REX   V.    THOMPSON.  [cHAP.  VII. 

Southerden,  with  intent  to  murder;  secondly,  with  intent  to  disable 
him  ;  and  thirdly,  with  intent  to  do  him  some  grievous  bodily  harm. 

On  the  trial  it  appeared  that  the  prisoner,  who  was  a  journeyman 
shoemaker,  on  the  18th  of  November,  1824,  applied  to  his  master  for 
some  money,  who  refused  to  give  it  to  him  till  he  finished  his  work  ;  on 
his  subsequently  urging  for  money  and  his  master  refusing  him,  he 
became  abusive,  upon  which  his  master  threatened  to  send  for  a  con- 
stable. The  prisoner  refused  to  finish  his  work,  and  said  he  would  go 
upstairs  and  pack  up  his  tools,  and  said  no  constable  should  stop  him  ; 
he  came  downstairs  with  his  tools,  and  drew  from  the  sleeve  of  his  coat 
a  naked  knife,  and  said  he  would  do  for  the  first  bloody  constable  that 
offered  to  stop  him  ;  that  he  was  ready  to  die,  and  would  have  a  life 
before  he  lost  his  own  ;  and  then  making  a  twisting  or  flourishing 
motion  with  the  knife,  put  it  up  his  sleeve  again,  and  left  the  shop. 

The  master  then  applied  to  Southerden,  the  constable,  to  take  the 
prisoner  into  custody  ;  he  made  no  charge,  but  said  "  he  suspected  he 
had  tools  of  his,  and  was  leaving  his  work  undone  ;  "  the  constable  said 
he  would  take  him  if  the  master  would  give  him  charge  of  him  ;  they 
then  followed  the  prisoner  to  the  yard  of  the  Bull's  Head  Inn  ;  the  pris- 
oner was  in  a  public  privj'  there  as  if  he  had  occasion  there.  The  privy 
had  no  door  to  it.  The  master  said,  "That  is  the  man;  I  give  you 
in  charge  of  him."  The  constable  then  said  to  the  prisoner,  "  My  good 
fellow,  your  master  gives  me  charge  of  you  ;  30U  must  go  with  me." 
The  prisoner,  without  saying  anything,  presented  a  knife  to  the  con- 
stable and  stabbed  him  under  the  left  breast ;  he  attempted  to  make  a 
second,  third,  and  fourth  blow,  which  the  constable  parried  off  with  his 
staff.  The  constable  then  aimed  a  blow  at  his  head  ;  the  prisoner  then 
ran  away  with  the  knife  and  was  afterwards  secured. 

The  surgeon  described  the  wound  as  being  two  inches  and  a  half  in 
length  and  one  quarter  of  an  inch  deep,  and  inflicted  with  a  sharp 
instrument  like  the  knife  produced.  The  knife  appeared  to  have  struck 
against  one  of  the  ribs  and  glanced  off.  Had  the  point  of  the  knife 
insinuated  itself  between  the  ribs  and  entered  the  cavity  of  the  chest, 
death  would  have  inevitably  been  the  consequence  ;  if  it  had  struck  two 
inches  lower  death  would  have  ensued  ;  but  the  wound,  as  it  happened, 
was  not  considered  dangerous. 

The  jury  found  the  prisoner  guilt}',  and  sentence  of  death  was  passed 
upon  him  ;  but  the  learned  judge  respited  the  execution  and  submitted 
the  case  for  the  consideration  of  the  judges. 

In  Hilary  term,  1825,  all  the  judges  (except  Best.  L.  C.  J.,  and 
Alexander,  L.  C.  B.,  who  were  absent)  met  and  considered  this  case. 
The  majority  of  the  judges,  viz.,  Abbott,  L.  C.  J.,  Graham,  B.,  Baylej', 
J.,  Park,  J.,  Garrow,  B.,  HuUock,  B.,  Littledale,  J.,  and  Gaselee,  J., 
held  that  as  the  actual  arrest  would  have  been  illegal,  the  attempt  to 
make  it  when  the  prisoner  was  in  such  a  situation  that  he  could  not 
get  awa}',  and  when  the  waiting  to  give  notice  might  have  enabled  the 
constable  to  complete  the  arrest,  was  such  a  provocation  as,  if  death 


SECT.  VI.]  REGINA   V.    WELSH.  475 

had  ensued,  would  have  made  the  case  manslaughter  only,  and  that 
therefore  the  convictiou  was  wrong.  Holroyd,  J.,  and  iJurrough,  J., 
thought  otherwise. 


REGINA   V.   WELSH. 
Central  Criminal  Court.     1869. 

[Reported  1 1  *Cox  C.  C.  336.] 

The  prisoner  was  indicted  for  that  he  feloniously  and  with  malice 
aforethought  did  kill  and  slay  one  Abraham. 

Pater  for  the  prosecution. 

Ribton  for  the  prisoner. 

The  prisoner  had  claimed  a  debt  from  the  deceased,  and  had  sum- 
moned him  to  a  police  court  where  the  claim  w^as  dismissed.  The 
prisoner  went  from  the  police  office  to  a  public-house,  distant  about  a 
mile,  whither  in  a  short  time  the  deceased  also  came.  ''  You  have  got 
the  better  of  me  this  time,"  said  the  prisoner  to  him.  "  Yes,"  answered 
the  deceased,  pleasantly;  "I  thought  I  should."  "But,"  said  the 
prisoner,  "  I  '11  have  another  summons  out  against  you  about  it."  "  I 
am  readv,"  replied  the  deceased,  "  to  pay  what  any  Indifferent  person 
ma}'  say  is  due."  "  Not  you,"  said  the  prisoner  ;  "  3'ou  don't  mean  to 
pay  anything."  The  deceased  approached  him  and  offered  to  drink 
with  him.  The  prisoner  refused,  saying,  "  I  will  not  drink  with  such  a 
man  as  you."  The  deceased  came  near  him.  The  prisoner  said, 
"  Don't  come  near  me,"  and  advanced  towards  him.  The  deceased 
retreated  several  paces.  The  prisoner  came  near  him.  The  deceased 
held  out  his  hand  again,  until  it  was  within  a  few  inches  of  the  pris- 
oner's face,  apparently  to  ward  him  off,  and  saying  at  the  same  time, 
"  "Words  as  you  like,  but  keep  3'our  hands  off."  The  deceased  struck 
no  blow.  The  prisoner  closed  with  him,  and  forced  him  down  on  a 
seat,  and  a  few  moments  afterwards  was  seen  almost  upon  him,  in  the 
act  of  stabbing  him  in  the  abdomen  with  a  clasp  knife.  The  blow  was 
mortal,  and  the  man  died. 

Ribton,  for  the  prisoner,  strove  in  cross-examination  to  elicit  that 
there  was  some  blow  or  push  b}-  the  deceased. 

The  principal  witnesses,  in  answer  to  the  learned  judge,  said  that 
they  saw  no  blow  or  even  push  by  the  deceased  ;  but  that,  on  the  con- 
trary, it  was  the  prisoner  who  shoved  or  pushed  the  deceased  down. 

Ribton,  in  addressing  the  jury  for  the  defence,  submitted  that  the 
question  was  not  whether  the  provocation  was  or  was  not  slight  (as  he 
admitted  it  was),  but  whether  or  not  in  point  of  fact  the  prisoner 
was  under  the  influence  of  ungovernable  passion  at  the  time  he  struck 
the  blow. 

Keating,  J.,  however,  said  he  should  tell  the  jury  that  the  question 


476  REGINA    V.   WELSH.  [CHAP.  VII. 

was,  not  merely  whether  there  was  passion,  but  whether  there  was 
reasonable  provocation. 

Mibton  cited  Foster's  Crown  Law,  295,  to  show  that  the  law  made 
allowances  for  human  passion,  and  he  urged  that  upon  the  evidence 
there  was  clearly  an  assault  upon  the  person  by  the  deceased  in  holding 
his  hand  so  near  the  prisoner's  face,  and  that  the  probability  was  that 
there  was  a  blow,  as  the  witnesses  heard  the  prisoner  sa}^  "Keep  off," 
and  did  not  see  precisely  what  had  happened  in  the  brief  interval 
between  that  expression  and  the  fatal  blow. 

Keating,  J.,  in  summing  up  the  case  to  the  jur}-,  said:  The  pris- 
oner is  indicted  for  that  he  killed  the  deceased  feloniously'  and  with 
malice  aforethought,  that  is  to  sa}'  intentionally,  without  such  provo- 
cation as  would  have  excused,  or  such  cause  as  might  have  justified, 
the  act.  Malice  aforethought  means  intention  to  kill.  Whenever  one 
person  kills  another  intentionally,  he  does  it  with  malice  aforethought. 
In  point  of  law,  the  intention  signifies  the  malice.  It  is  for  him  to 
show  that  it  was  not  so  b^'  showing  sufficient  provocation,  which  only 
reduces  the  crime  to  manslaughter,  because  it  tends  to  negative  the 
malice.  But  when  that  provocation  does  not  appear,  the  malice  afore- 
thought implied  in  the  intention  remains.  B3'  the  law  of  England, 
therefore,  all  intentional  homicide  \?,  prima  facie  murder.  It  rests  with 
the  party  charged  with  and  proved  to  have  committed  it  to  show,  either 
by  evidence  adduced  for  the  purpose,  or  upon  the  facts  as  the}'  appear, 
that  the  homicide  took  place  under  such  circumstances  as  to  reduce  the 
crime  from  murder  to  manslaughter.  Homicide,  which  would  hQ  prima 
facie  murder,  may  be  committed  under  such  circumstances  of  provoca- 
tion as  to  make  it  manslaughter,  and  show  that  it  was  not  committed 
with  malice  aforethought.  The  question,  therefore,  is  —  first,  whether 
there  is  evidence  of  any  such  provocation  as  could  reduce  the  crime 
from  murder  to  manslaughter;  and,  if  there  be  any  such  evidence,  then 
it  is  for  the  jury  whether  it  was  such  that  the}'  can  attribute  the  act  to 
the  violence  of  passion  naturall}'  arising  therefrom,  and  likel}'  to  be 
aroused  thereby  in  the  breast  of  a  reasonable  man.  The  law,  therefore, 
is  not,  as  was  represented  b}'  the  prisoner's  fcounsel,  that,  if  a  man 
commits  the  crime  under  the  influence  of  passion,  it  is  mere  man- 
slaughter. The  law  is  that  there  must  exist  such  an  amount  of  provo- 
cation as  would  be  excited  by  the  circumstances  in  the  mind  of  a 
reasonable  man,  and  so  as  to  lead  the  jury  to  ascribe  the  act  to  the 
influence  of  that  passion.  When  the  law  says  that  it  allows  for  the 
infirmity  of  human  nature,  it  does  not  sa}'  that  if  a  man,  without  suffi- 
cient provocation,  gives  wa}'  to  angry  passion,  and  does  not  use  his 
reason  to  control  it  —  the  law  does  not  sa}'  that  an  act  of  homicide, 
intentionally  committed  under  the  influence  of  that  passion,  is  excused 
or  reduced  to  manslaughter.  The  law  contemplates  the  case  of  a 
reasonable  man,  and  requires  that  the  provocation  shall  be  such  as- 
that  such  a  man  might  naturally  be  induced,  in  tlie  anger  of  the 
moment,  to  commit  the  act.    Now,  I  am  bound  to  sa3-  that  I  am  unable 


SECT.  VI.]  REGINA    V.    KOTHWP^LL.  477 

to  discover  in  the  evidence  in  this  case  any  provocation  wliich  would 
siiHice,  or  approach  to  such  as  would  suflice,  to  reduce  the  crime  to 
manslaughter.  It  has  been  laid  down  that  mere  words  or  gestures  will 
not  be  sufficient  to  reduce  the  offence,  and  at  all  events  the  law  is  clear 
that  the  provocation  must  be  serious.  I  have  alread}-  said  that  I  can 
discover  no  proof  of  such  provocation  in  the  evidence.  If  you  can 
discover  it,  you  can  give  effect  to  it ;  but  you  are  bound  not  to  do  so 
unless  satisfied  that  it  was  serious.  It  is  urged  that  there  was  an 
assault,  and  that  it  is  probable  there  was  a  blow.  That  is  for  you  to 
consider.  AVhat  I  am  bound  to  tell  you  is  that  in  law  it  is  necessary 
that  there  should  have  been  serious  provocation  in  order  to  reduce  the 
crime  to  manslaughter,  as,  for  instance,  a  blow,  and  a  severe  blow,  — 
something  which  might  naturally  cause  an  ordinary  and  reasonably' 
minded  man  to  lose  his  self-control  and  commit  such  an  act.  I 
endeavored  to  elicit  whether  there  was  anything  like  a  blow  by  the 
deceased,  but  failed  to  do  so.  It  does  not  appear  that  there  was  any- 
thing beyond  putting  out  his  hand,  which  came  near  the  prisoner's  face. 
There  is  no  evidence  of  his  doing  anything  else  ;  that  is  the  evidence. 
Upon  the  evidence  it  is  for  you  to  ascertain  whether,  taking  the  law  as 
I  have  laid  it  down,  you  can  discover  evidence  of  such  a  serious  provo- 
cation as  would  reduce  the  crime  to  manslaughter. 

Guilty  ^  sentence,  Death. 


REGINA  V.  ROTHWELL. 
Manchester  Assizes.     1871. 

[Reported  12  Cox  C.  C.  145.] 

Christopher  Rothwell  was  indicted  for  the  wilful  murder  of  his 
wife,  at  Oldham,  on  the  2d  of  October. 

Cottingham  for  the  prosecution. 

Torr  for  the  defence.' 

Blackburn,  J.,  in  summing  up,  said  :  A  person  who  inflicted  a 
dangerous  wound,  that  is  to  say,  a  wound  of  such  a  nature  as  he  must 
know  to  be  dangerous,  and  death  ensues,  is  guilty  of  murder ;  but 
there  may  be  such  heat  of  blood  and  provocation  as  to  reduce  the 
crime  to  manslaughter.  A  blow  is  such  a  provocation  as  will  reduce 
the  crime  of  murder  to  that  of  manslaughter.  Where,  however,  there 
are  no  blows,  there  must  be  a  provocation  equal  to  blows  ;  it  must  be 
at  least  as  great  as  blows.  For  instance,  a  man  who  discovers  his  wife 
in  adultery,  and  thereupon  kills  the  adulterer,  is  only  guilty  of  man- 
slaughter. As  a  general  rule  of  law,  no  provocation  of  words  will 
reduce  the  crime  of  murder  to  that  of  manslaughter,  but  under  special 

1  The  evidence  is  omitted. 


478  MAHEE   V.    PEOPLE.  [CIIAP.  VII. 

circumstances  there  may  be  such  a  provocation  of  words  as  will  have 
that  effect ;  for  instance,  if  a  husband  suddenly  hearing  from  his  wife 
that  she  had  committed  adultery,  and  he  having  had  no  idea  of  such  a 
thing  before,  were  thereupon  to  kill  his  wife,  it  might  be  manslaughter. 
Now,  in  this  case,  words  spoken  by  the  deceased  just  previous  to  the 
blows  inflicted  by  the  prisoner  were  these:  "Aye;  but  I'll  take  no 
more  for  thee,  for  I  will  have  no  more  children  of  thee.  I  have 
done  it  once,  and  I'll  do  it  again."  Now,  what  you  will  have  to  con- 
sider is,  would  these  words,  which  were  spoken  just  previous  to  the 
blows,  amount  to  such  a  provocation  as  would  in  an  ordinary  man,  not 
in  a  man  of  violent  or  passionate  disposition,  provoke  him  in  such  a 
way  as  to  justify  him  in  striking  her  as  the  prisoner  did. 

Guilty  of  manslaughter ;  ten  years  penal  servitude. 


MAHER  V.  PEOPLE. 
Supreme  Court  of  Michigan.     1862. 

[Reported  10  Michigan,  212.] 

Christiancy,  J.^  To  give  the  homicide  the  legal  character  of  murder, 
all  the  authorities  agree  that  it  must  have  been  perpetrated  with  malice 
prepense  or  aforethought.  This  malice  is  just  as  essential  an  ingredient 
of  the  offence  as  the  act  which  causes  the  death  ;  without  the  concurrence 
of  both,  the  crime  cannot  exist ;  and,  as  every  man  is  presumed  innocent 
of  the  offence  with  which  he  is  charged  till  he  is  proved  to  be  guilt}', 
this  presumption  must  apply  equally  to  both  ingredients  of  the  offence, 
—  to  the  malice  as  well  as  to  the  killing.  Hence,  though  the  principle 
seems  to  have  been  sometimes  overlooked,  the  burden  of  proof,  as  to 
each,  rests  equally  upon  the  prosecution,  though  the  one  may  admit 
and  require  more  direct  proof  than  the  other  ;  malice,  in  most  cases, 
not  being  susceptible  of  direct  proof,  but  to  be  established  by  infer- 
ences more  or  less  strong,  to  be  drawn  from  the  facts  and  circumstances 
connected  with  the  killing,  and  which  indicate  the  disposition  or  state 
of  mind  with  which  it  was  done.  It  is  for  the  court  to  define  the  legal 
import  of  the  term  ''malice  aforethought,"  or,  in  other  words,  that  state 
or  disposition  of  mind  which  constitutes  it ;  but  the  question  whether 
it  existed  or  not,  in  the  particular  instance,  would,  upon  principle,  seem 
to  be  as  clearly  a  question  of  fact  for  the  jury  as  any  other  fact  in  the 
cause,  and  that  they  must  give  such  weight  to  the  various  facts  and 
circumstances  accompanying  the  act,  or  in  any  way  bearing  upon  the 
question,  as  in  their  judgment  the}'  deserve  :  and  that  the  court  have 
no  right  to  withdraw  the  question  from  the  jury  by   assuming  to  draw 

1  Part  of  the  opinion  only  is  given. 


5EGT.  VI.]  MAHER    V.    PEOPLE.  479 

the  proper  inferences  from  the  whole  or  any  part  of  the  facts  proved, 
as  presumption  of  hiw.  If  courts  could  do  this,  juries  might  be  required 
to  find  the  fact  of  malice  where  they  were  satisfied  from  the  whole 
evidence  it  did  not  exist.  I  do  not  here  speak  of  those  cases  in  which 
the  death  is  caused  in  the  attempt  to  commit  some  other  off"ence,  or  in 
illegal  resistance  to  public  officers,  or  other  classes  of  cases  which  may 
rest  upon  peculiar  grounds  of  public  policy,  and  which  may  or  may 
not  form  an  exception  ;  but  of  ordinary  cases,  such  as  this  would  have 
been  had  death  ensued.  It  is  not  necessary  here  to  enumerate  all  the 
elements  which  enter  into  the  legal  definition  of  malice  aforethought. 
It  is  sufficient  to  say  that,  within  the  principle  of  all  the  recognized 
definitions,  the  homicide  must,  in  all  ordinary  cases,  have  been  com- 
mitted with  some  degree  of  coolness  and  deliberation,  or,  at  least, 
under  circumstances  in  which  ordinary  men,  or  the  average  of  men 
recognized  as  peaceable  citizens,  would  not  be  liable  to  have  their 
reason  clouded  or  obscured  by  passion  ;  and  the  act  must  be  prompted 
by,  or  the  circumstances  indicate  that  it  sprung  from,  a  wicked, 
depraved,  or  malignant  mind,  —  a  mind  which  even  in  its  habitual  con- 
dition and  when  excited  by  no  provocation  which  would  be  liable  to 
give  undue  control  to  passion  in  ordinary  men,  is  cruel,  wanton,  or 
malignant,  reckless  of  human  life,  or  regardless  of  social  duty. 

But  if  the  act  of  killing,  though  intentional,  be  committed  under  the 
influence  of  passion  or  in  heat  of  blood,  produced  by  an  adequate  or 
reasonable  provocation,  and  before  a  reasonable  time  has  elapsed  for 
the  blood  to  cool  and  reason  to  resume  its  habitual  control,  and  is  the 
result  of  the  temporary  excitement  by  which  the  control  of  reason  was 
disturbed,  rather  than  of  any  wickedness  of  heart  or  cruelty  or  reck- 
lessness of  disposition,  —  then  the  law,  out  of  indulgence  to  the  frailty 
of  human  nature,  or  rather,  in  recognition  of  the  laws  upon  which 
human  nature  is  constituted,  very  properly  regards  the  offence  as  of  a 
less  heinous  character  than  murder,  and  gives  it  the  designation  of 
manslaughter. 

To  what  extent  the  passions  must  be  aroused  and  the  dominion  of 
reason  disturbed  to  reduce  the  offence  from  murder  to  manslaughter, 
the  cases  are  by  no  means  agreed  ;  and  any  rule  which  should  embrace 
all  the  cases  that  have  been  decided  in  reference  to  this  point,  would 
come  very  near  obliterating,  if  it  did  not  entirely  obliterate,  all  dis- 
tinction between  murder  and  manslaughter  in  such  cases.  We  must 
therefore  endeavor  to  discover  the  principle  upon  which  the  question 
is  to  be  determined.  It  will  not  do  to  hold  that  reason  should  be 
entirely  dethroned,  or  overpowered  by  passion  so  as  to  destroy  intelli- 
gent volition.  State  v.  Hill,  1  Dev.  &  Bat.  491  ;  Haile  v.  State,  1  Swan, 
248;  Young  v.  State,  11  Humph.  200.  Such  a  degree  of  mental  dis- 
turbance would  be  equivalent  to  utter  insanity,  and  if  the  result  of 
adequate  provocation,  would  render  the  perpetrator  morally  innocent. 
But  the  law  regards  manslaughter  as  a  high  grade  of  offence,  —  as  a 
felony.     On  principle,  therefore,  the  extent  to  which   the  passions   are 


480  MAHEK   V.  PEOPLE.  [CHAP.  VII, 

required  to  be  aroused  and  reason  obscured  must  be  considerably  short 
of  this,  and  never  beyond  that  degree  within  which  ordinary  men  have 
the  power,  and  are  therefore  morally  as  well  as  legally  bound,  to 
restrain  their  passions.  It  is  only  on  the  idea  of  a  violation  of  this 
clear  dutj',  that  the  act  can  be  held  criminal.  There  are  many  cases 
to  be  found  in  the  books  in  which  this  consideration,  plain  as  it  would 
seem  to  be  in  principle,  appears  to  have  been  in  a  great  measure  over- 
looked, and  a  course  of  reasoning  adopted  which  could  only  be  justified 
on  the  supposition  that  the  question  was  between  murder  and  excusable 
homicide. 

The  principle  involved  in  the  question,  and  which  I  think  clearly 
deducible  from  the  majority  of  well  considered  cases,  would  seem  to 
suggest,  as  the  true  general  rule,  that  reason  should,  at  the  time  of  the 
act,  be  disturbed  or  obscured  by  passion  to  an  extent  which  might 
render  ordinary  men,  of  fair  average  disposition,  liable  to  act  rashly 
or  without  due  deliberation  or  reflection,  and  from  passion,  rather  than 
judgment. 

To  the  question  what  shall  be  considered  in  law  a  reasonable  or 
adequate  provocation  for  such  a  state  of  mind,  so  as  to  give  to  a 
homicide  committed  under  its  influence  the  character  of  manslaughter, 
on  principle,  the  answer,  as  a  general  rule,  must  be,  anything  the 
natural  tendency  of  which  would  be  to  produce  such  a  state  of  mind 
in  ordinary  men,  and  which  the  jur}^  are  satisfied  did  produce  it  in  the 
case  before  them,  —  not  such  a  provocation  as  must,  by  the  laws  of  the 
human  mind,  produce  such  an  effect  with  the  certainty  that  physical 
eflects  follow  from  physical  causes  ;  for  then  the  individual  could  hardly 
be  held  morally  accountable.  Nor,  on  the  other  hand,  must  the  pro- 
vocation in  ever}-  case  be  held  sufficient  or  reasonable  because  such  a 
state  of  excitement  has  followed  from  itj  for  then,  b}'  habitual  and 
long  continued  indulgence  of  evil  passions,  a  bad  man  might  acquire 
a  claim  to  mitigation  which  would  not  be  available  to  better  men,  and 
on  account  of  that  very  wickedness  of  heart  which,  in  itself,  constitutes 
an  aggravation  both  in  morals  and  in  law. 

In  determining  whether  the  provocation  is  sufficient  or  reasonable, 
ordinary  human  nature,  or  the  average  of  men  recognized  as  men  of 
fair  average  mind  and  disposition,  should  be  taken  as  the  standard,  — 
unless,  indeed,  the  person  whose  guilt  is  in  question  be  shown  to  have 
some  peculiar  weakness  of  mind  or  infirmit}'  of  temper,  not  arising  from 
wickedness  of  heart  or  cruelty  of  disposition. 

It  is  doubtless,  in  one  sense,  the  province  of  the  court  to  define  what, 
in  law,  will  constitute  a  reasonable  or  adequate  provocation,  but  not,  I 
think,  in  ordinary  cases,  to  determine  whether  the  provocation  proved 
in  the  particular  case  is  sufficient  or  reasonable.  This  is  essentially  a 
question  of  fact,  and  to  be  decided  with  reference  to  the  peculiar  facts 
of  each  particular  case.  As  a  general  rule,  the  court,  after  informing 
the  jury  to  what  extent  the  passions  must  be  aroused  and  reason 
obscured  to  render  the   homicide   manslaughter,  should   inform   them 


SKCT.  VI.l  MAKER   V.   PEOPLE.  481 

that  the  provocation  must  be  one  the  tendency  of  which  would  be  to 
produce  such  a  degree  of  excitement  and  disturbance  in  the  minds  of 
ordinary  men  ;  and  if  they  should  find  such  provocation  from  the  facts 
proved,  and  should  further  find  that  it  did  produce  that  effect  in  the 
particular  instance,  and  that  the  homicide  was  the  result  of  such  prov- 
ocation, it  would  give  it  the  character  of  manslaughter.  Besides  the 
consideration  that  the  question  is  essentially  one  of  fact,  jurors,  from 
the  mode  of  their  selection,  coming  from  the  various  classes  and  occu- 
pations of  society,  and  conversant  with  the  practical  affairs  of  life,  are, 
in  my  opinion,  much  better  qualified  to  judge  of  the  sufiiciency  and 
tendency  of  a  given  provocation,  and  much  more  likely  to  fix,  with 
some  degree  of  accuracy,  the  standard  of  what  constitutes  the  average 
of  ordinary  human  nature,  than  the  judge  whose  habits  and  course  of 
life  give  him  much  less  experience  of  the  workings  of  passion  in  the 
actual  conflicts  of  life. 

The  judge,  it  is  true,  must,  to  some  extent,  assume  to  decide  upon 
the  sufficiency  of  the  alleged  provocation  when  the  question  arises 
upon  the  admission  of  testimony  ;  and  when  it  is  so  clear  as  to  admit 
of  no  reasonable  doubt,  upon  any  theory,  that  tlie  alleged  provocation 
could  not  have  had  any  tendency  to  produce  such  state  of  mind  in 
ordinary  men,  he  may  properly  exclude  the  evidence ;  but,  if  the 
alleged  provocation  be  such  as  to  admit  of  any  reasonable  doubt 
whether  it  might  not  have  had  such  tendency,  it  is  much  safer,  I 
think,  and  more  in  accordance  with  principle,  to  let  the  evidence  go  to 
the  jury  under  the  proper  instructions.  As  already  intimated,  the 
question  of  the  reasonableness  or  adequacy  of  the  provocation  must 
depend  upon  the  facts  of  each  particular  case.  That  can,  with  no 
propriety,  be  called  a  rule  (or  a  question)  of  law  which  must  vary 
with,  and  depend  upon  the  almost  infinite  variety  of  facts  presented  by 
the  various  cases  as  they  arise.  See  Stark,  on  Ev.,  Amer.  ed.  1860, 
pp.  676  to  680.  The  law  cannot  with  justice  assume,  by  the  light  of 
past  decisions,  to  catalogue  all  the  various  facts  and  combinations  of 
facts  which  shall  be  held  to  constitute  reasonable  or  adequate  provoca- 
tion. Scarcely  two  past  cases  can  be  found  which  are  identical  in  all 
their  circumstances ;  and  there  is  no  reason  to  hope  for  greater  uni- 
formity in  future.  Provocations  will  be  given  without  reference  to  any 
previous  model,  and  the  passions  they  excite  will  not  consult  the 
precedents. 

The  same  principles  which  govern  as  to  the  extent  to  which  the 
passions  must  be  excited  and  reason  disturbed  apply  with  equal  force 
to  the  time  during  which  its  continuance  may  be  recognized  as  a  ground 
for  mitigating  the  homicide  to  the  degree  of  manslaughter,  or,  in  other 
words,  to  the  question  of  cooling  time.  This,  like  the  provocation 
itself,  must  depend  upon  the  nature  of  man  and  the  laws  of  the  human 
mind,  as  well  as  upon  the  nature  and  circumstances  of  the  provocation, 
the  extent  to  which  the  passions  have  been  aroused,  and  the  fact 
whether  the  injury  inflicted  by  the  provocation  is  more  or  less   per- 


482  MAKER   V.    PEOPLE.  [CHAP.  VII. 

manent  or  irreparable.  The  passion  excited  by  a  blow  received  in  a 
sudden  quarrel,  tliougli  perliaps  equally  violent  for  the  moment,  would 
be  likelj'  much  sooner  to  subside  than  if  aroused  by  a  rape  committed 
upon  a  sister  or  a  daughter,  or  the  discovery  of  an  adulterous  inter- 
course with  a  wife ;  and  no  two  cases  of  the  latter  kind  would  be  likely 
to  be  identical  in  all  their  circumstances  of  provocation.  No  precise 
time,  therefore,  in  hours  or  minutes,  can  be  laid  down  by  the  court,  as 
a  rule  of  law,  within  -which  the  passions  must  be  held  to  have  subsided 
and  reason  to  have  resumed  its  control,  without  setting  at  defiance  the 
laws  of  man's  nature,  and  ignoring  the  very  principle  on  which  prov- 
ocation and  passion  are  allowed  to  be  shown  at  all,  in  mitigation  of 
the  offence.  The  question  is  one  of  reasonable  time,  depending  upon 
all  the  circumstances  of  the  particular  case  ;  and  where  the  law  has 
not  defined,  and  cannot  without  gross  injustice  define  the  precise  time 
which  shall  be  deemed  reasonable,  as  it  has  with  respect  to  notice  or 
the  dishonor  of  commercial  paper.  In  such  case,  where  the  law  has 
defined  what  shall  be  reasonable  time,  the  question  of  such  reasonable 
time,  the  facts  being  found  by  the  jury,  is  one  of  law  for  the  court; 
but  in  all  other  cases  it  is  a  question  of  fact  for  the  jury  ;  and  the  court 
cannot  take  it  from  the  jury  b}'  assuming  to  decide  it  as  a  question  of 
law,  without  confounding  the  respective  provinces  of  the  court  and 
jury.  Stark.  Ev.,  ed.  of  1860,  pp.  768,  769,  774,  775.  In  Rex  v. 
Howard,  6  C.  &  P.,  157,  and  Rex  v.  Lynch,  5  C.  &  P.  324,  this  question 
of  reasonable  cooling  time  was  expressly  held  to  be  a  question  of  fact 
for  the  jury.  And  see  Whart.  Cr.  L.,  4th  ed,,  §990  and  cases  cited. 
I  am  aware  there  are  many  cases  in  which  it  has  been  held  a  question 
of  law  ;  but  I  can  see  no  principle  on  which  such  a  rule  can  rest.  The 
court  should,  I  think,  define  to  the  jury  the  principles  upon  which  the 
question  is  to  be  decided,  and  leave  them  to  determine  whether  the 
time  was  reasonable  under  all  the  circumstances  of  the  particular  case. 
I  do  not  mean  to  say  that  the  time  may  not  be  so  great  as  to  enable 
the  court  to  determine  that  it  is  sufficient  for  the  passion  to  have  cooled, 
or  so  to  instruct  the  jur}-,  witliout  error  ;  but  the  case  should  be  very 
clear.  And  in  cases  of  applications  for  a  new  trial,  depending  upon  the 
discretion  of  the  court,  the  question  may  very  properly  be  considered  by 
the  court. 

It  remains  only  to  apply  these  principles  to  the  present  case.  The 
proposed  evidence,  in  connection  with  what  had  alread}'  been  given, 
would  have  tended  strongly  to  show  the  commission  of  adultery  by 
Hunt  with  the  prisoner's  wife,  within  half  an  hour  before  the  assault ; 
that  the  prisoner  saw  them  going  to  the  woods  together,  under  circum- 
stances calculated  strongly'  to  impress  upon  his  mind  the  belief  of  the 
adulterous  purpose  ;  that  he  followed  after  them  to  the  woods  ;  that 
Hunt  and  the  prisoner's  wife  were,  not  long  after,  seen  coming  from 
the  woods,  and  that  the  prisoner  followed  them,  and  went  in  hot  pursuit 
after  Hunt  to  the  saloon,  and  was  informed  b}'  a  friend  on  the  way 
that  they  had  committed  adultery  the  day  before  in  the  woods.     I   can 


SKCT.  \I.  ]  MAHER   V.    PEOPLE.  483 

not  resist  the  conviction  that  this  would  have  been  sufficient  evidence 
of  provocation  to  go  to  the  jury,  and  from  which,  when  taken  in  con- 
nection with  the  excitement  and  "great  perspiration"  exhibited  on 
entering  tlie  saloon,  the  hasty  manner  in  whicli  he  approached  and 
fired  the  pistol  at  Hunt,  it  would  have  been  competent  for  the  jury  to 
find  that  the  act  was  committed  in  consequence  of  the  passion  excited 
by  the  provocation,  and  in  a  state  of  mind  which,  within  the  principle 
already  explained,  would  have  given  to  the  homicide,  had  death  ensued, 
the  character  of  manslaughter  only.  In  holding  otherwise  the  court 
below  was  doubtless  guided  by  those  cases  in  which  courts  have  arbi- 
trarily assumed  to  take  tlie  question  fi'om  the  jury,  and  to  decide  upon 
the  facts  or  some  particular  fact  of  the  case,  whether  a  sufficient 
provocation  had  been  shown,  and  what  was  a  reasonable  time  for 
cooling. 


484  ANONYMOUS.  [CHAP.   VIII. 


CHAPTER   yill. 
LARCENY. 


SECTION   I. 

What  Property  is  the  Subject  of  Larceny. 

Bracton  De  Legibus,  150  b.  Larcen}-  is,  according  to  the  law,  the 
fraudulent  taking  of  the  property  of  another,  with  intent  to  steal,  against 
the  will  of  the  owner.^ 


ANONYMOUS. 

Assizes.     1338. 

[Reported  Year  Book,  U  §•  \2  Ed.  III.,  640.] 

A  FORESTER  was  indicted  "  that  he  feloniousl}-  cut  down  and  carried 
away  trees."  The  justices  would  not  arraign  him,  for  the  felling  of  trees 
which  are  so  annexed  to  the  soil  cannot  be  called  a  felony,  even  if  a 
stranger  had  done  it.  Besides,  here  perhaps  he  himself  had  the  keeping 
of  them.  But  because  it  was  possible  that  the  trees  were  first  of  all 
felled  by  the  lord  and  then  carried  away  b}'  the  forester,  they  questioned 
the  inquest,  who  said  that  he  was  the  forester  when  he  felled  and  car- 
ried them  away.  Scharshulle  [J.],  to  the  inquest:  Did  the  forester 
conceal  the  trees  from  the  lord?  The  Inquest.  We  do  not  know. 
Aldeburgh  [J.].  Certainly  we  do  not  think  it  important  whether  he 
concealed  them  or  not ;  but  we  adjudge  that  it  is  no  felony, _  because 
he  was  the  keeper ;  and  a  tree  is  part  of  the  freehold.^ 

1  Furtum   est   secundum  leges  contractatio  rei    alienae  fraudulenta,  cum   anima 
furandi,  invito  illo  domino  cuius  res  ilia  fuerit. 

2  12  Lib.  Ass.,  32,  S.  C. 


SECT.  I.]  KEX   V.   WODY.  485 

EEX  V.   WODY. 
Exchequer  Chamber.     1470. 

[Reported  Year  Boole,  10  Ed.  IV.,  14,/)/.  9,  lO.J 

One  William  Wod}-  was  indicted  for  that  he  feloniousl}'  took  and 
carried  away  six  boxes,  with  charters  and  muniments  concerning  the 
inheritance  of  John  Culpepper  and  Nicholas  C,  etc.,  contained  in  the 
boxes. 

Suhjard.  It  seems  that  it  is  not  felou}',  for  the  sealed  boxes  shall 
be  called  of  the  same  nature  as  the  charters  contained  in  them,^  while 
the  charters  are  concerning  the  inheritance,  so  that  these  things  touch 
the  inheritance  of  the  realty',  etc. 

Nele.  Eveiy  felony  ought  to  be  a  loss  of  twelve  pence  ;  but  in 
detinue  of  charters,  or  of  sealed  boxes  with  charters  contained  in  them, 
those  in  the  Chancery  do  not  say  "  ad  valentiam^'  etc.,  for  they  cannot 
be  valued,  and  so  it  cannot  be  feloii}*. 

Colloic.  A  man  may  recover  damages  in  detinue  if  the  charters  are 
burned. 

All  the  justices  of  the  one  bench  and  of  the  other  were  assembled  in 
the  Exchequer  Chamber. 

Choke,  J.  It  seems  that  it  is  not  felony  for  two  reasons  :  first,  they 
ai-e  so  far  real  tliat  it  cannot  be  felon}'.  For  thej'  are  not  chattels  real, 
but  are  real  in  themselves  ;  for  if  a  man  be  attainted  of  felony,  the  king 
shall  not  have  his  charters  concerning  his  land,  for  they  are  real,  but 
he  shall  have  his  wardship,  or  term,  for  the}'  are  chattels  real.  Quod 
fait  concessum  per  omnes  jiisticios . 

Yelverton,  J.,  said,  that  if  a  man  has  a  franchise  to  have  catalla 
felonum.,  etc.,  still  be  shall  not  have  the  charters  concerning  the  land 
of  felons,  etc. 

MoYLE,  J.     The  lord  shall  have  the  charters  with  the  land,  etc. 

And  it  was  held  that  if  a  man  gives  omnia  bona  et  catalla  sua,  the 
charters  do  not  pass,  therefore  they  are  released,  etc. 

Choke,  J.  The  second  reason  is  because  they  cannot  be  valued, 
etc.  ;  for  in  detinue  for  charters  one  does  not  say  ad  valentiam.,  etc., 
lit  supra.,  etc. 

Littleton,  J.  The  reason  why  those  in  the  Chancer}'  do  not  sa}'  ad 
valentiam  in  the  writs  ^it  supra  is  onl}'  the  precedent,  etc. ;  but  3'et 
they  are  of  value,  for  in  detinue  of  charters,  if  the  charters  are  lost  or 
burned,  he  shall  recover  in  damages,  having  regard  to  the  loss  that  he 
has  by  the  loss  of  the  charters  ;  this,  therefore,  proves  that  the}'  are  of 
value.  And  though  the  terms  ad  valentiam  and  ad  dampnnm  are 
different,  yet  they  are  of  the  same  effect.     ( Quod  fuit  negatiim,  etc.) 

^  Upon  this  argument  being  urged  in  Reg.  v.  Powell,  5  Cox  C.  C.  .397,  Alderson, 
B.,  said  :  "  I  suppose,  then,  that  if  a  lion  was  stole  in  a  cage,  it  would  be  said  that  the 
cage  yiB&  ferae  naturae."  —  Ed. 


486  ANONYMOUS.  [CHAP.  VIII. 

And  on  an  indictment  for  burglar}',  sc.  for  breaking  a  house,  one  should 
not  say  quod  /regit  domum  advale)itiafn,  etc. ;  and,  sir,  so  at  common 
law  wilful  burning  of  a  house  was  felony,  and  yet  one  should  not  say  ad 
valentiam,  etc. 

Billing,  C.  J.  Those  are  felonies  of  a  different  nature  from  rob- 
ber}', etc. 

Littleton,  J.  Because  charters  concerning  the  inheritance  are  of 
greater  value  than  other  things,  therefore  it  is  reason  that  as  great 
punishment  should  be  inflicted  for  the  taking  of  them  as  of  other  things, 
etc.  And,  sir,  in  trespass  quare  jjidlos  espervarios^  cepit,  one  should 
state  the  price,  but  in  trespass  quare  parcun^  fi^git  ^t  damas^  etc., 
one  should  not  state  the  price,  etc.,  for  it  is  not  the  use  in  the 
Chancery. 

Bingham,  J.  In  your  case  quare  2)uUos  espervurios  i7i  nido,  etc., 
the  plaintiff  should  state  the  price,  for  the  property  in  them  is  in  him ; 
for  the  nests  are  the  plaintiff's,  and  so  are  those  which  are  in  the  nests, 
and  besides  cannot  fly  out  of  your  possession,  etc. 

Nedham,  J.  Felony  is  only  of  such  thing  as  the  country  ma}'  have 
notice  of  the  value  of;  but  here  as  to  charters  within  the  boxes  they 
cannot  have  notice,  etc.,  of  the  value  of  them  ;  wherefore,  etc. 

Yelverton,  J.  Felony  cannot  be  of  any  goods  except  personal 
chattels  ;  for  a  man  cannot  take  my  ward  feloniously,  for  it  is  a  chattel 
real ;  and  it  was  held  that  a  deer  which  is  domesticated  may  be  stolen, 
and  so  when  it  is  dead.     And  so  of  fishes  taken  in  a  pond,  etc. 

And  then  it  was  advised  by  them  all  that  this  is  not  felony,  wherefore 
in  the  King's  Bench  the  defendant  was  discharged,  etc. 


ANONYMOUS. 
Opinion  of  the  Justices.     1528. 

[Reported  Year  Book,  \  9  Henry  VIII.,  2,  pi.  11.] 

A  question  was  propounded  to  all  the  Justices  by  the  Chancellor,  If 
a  man  feloniously  steals  peacocks  which  are  tame  and  domesticated, 
whether  it  is  felony  or  not.  And  by  Fitzherbert  and  Inglefield  [JJ.] 
it  was  said  that  it  is  not  felony,  because  they  are  ferce  naturce  like 
doves  in  a  dove-cote  ;  and  if  the  young  of  such  doves  are  stolen,  it  is 
not  felony.  The  same  law  of  herons  taken  out  of  the  nest,  or  of  swans 
taken,  or  of  a  buck,  or  hind,  which  are  domesticated,  or  of  hares  taken 
out  of  a  garden  which  is  surrounded  with  a  wall,  etc.  The  same  law  of 
a  mastiff,  hound,  or  spaniel,  or  of  a  goshawk  which  is  reclaimed  ;  for 
they  are  properly  things  of  pleasure  rather  than  of  profit.  And  so  the 
peacock  is  a  bird  more  for  pleasure  than  for  profit,  for  often  they 
intentionally  destroy  all  the  young  except  one. 


SECT.  I.]  EEX   V.    SHAKING.  487 

Aod  it  was  also  agreed  that  apples  taken  out  of  the  orchard  which 
were  growing  on  the  trees  at  the  time  of  taking,  or  trees  growing  upon 
the  [soil?]  at  the  time  of  taking,  or  grass  cut  and  carried  away,  is  not 
felony,  and  even  where  they  are  taken  with  felonious  intent,  because 
these  things  at  the  time  of  taking  are  parcel  of  the  franktenement ;  but 
if  mj'  trees  are  cut  down  bj'  me,  or  my  grass  growing  on  my  land  is 
by  me  cut  and  severed,  and  afterward  another  with  felonious  intent 
steals  it,  that  is  felony. 

FiTZJAMES  [C.  J.]  and  the  other  justices  said  that  peacocks  are 
commonly  of  the  same  nature  as  hens  or  capons,  geese  or  ducks,  and 
the  owner  has  propert}^  in  them,  and  they  have  animiim  revertendi,  and 
they  are  not  fowls  of  warren,  like  pheasant,  partridge,  conies,  or 
animals  of  that  sort,  for  the  taking  of  these  with  felonious  intent 
is  not  felon}'. 

And  in  the  end  it  was  agreed  by  all  the  justices,  that  this  taking  of 
peacocks  was  felony  for  the  cause  aforesaid,  Quod  N'ota. 


REX  V.  SEARING. 
Crown  Case  Reserved.     1818. 

[Reported  Russell  ^'  Ryan,  350.] 

The  prisoner  was  tried  before  Mr.  Baron  Wood  at  the  Lent  Assizes 
for  Hertfordshire  in  the  year  1818  for  larceny  in  stealing  "  five  live 
tame  ferrets  confined  in  a  certain  hutch,"  of  the  price  of  fifteen  shil- 
lings, the  property  of  Daniel  Flower. 

The  jury  found  the  prisoner  guilty  ;  but  on  the  authority  of  2  East, 
P.  C.  614,  where  it  is  said  that  ferrets  (among  other  things)  are  con- 
sidered of  so  base  a  nature  that  no  iarcenj'  can  be  committed  of  them, 
the  learned  judge  respited  the  judgment  until  the  opinion  of  the  judges 
could  be  taken  thereon. 

It  appeared  in  evidence  that  ferrets  are  valuable  animals,  and  those 
in  question  were  sold  bj'  the  prisoner  for  nine  shillings. 

In  Easter  term,  1818,  the  judges  met  and  considei-ed  this  case  ;  they 
were  of  opinion  that  ferrets  (though  tame  and  salable)  could  not  be 
the  subject  of  larceny  and  that  judgment  ought  to  be  arrested. 


488  REGINA   V.    CHEAFOR.  [CHAP.  VIII. 


REGINA   V.   CHEAFOR. 
Crown  Case  Reserved.  1851. 

[Reported  5  Cox  C.  C.  367.] 

At  the  Quarter  Sessions  for  the  county  of  Nottingham,  held  at  East 
Retford,  on  the  7th  of  July,  1851,  the  prisoner  was  indicted  for  felon- 
iously stealing  four  tame  pigeons,  the  property  of  John  INIansell.  The 
pigeons,  at  the  time  the}'  were  taken  b^'  the  prisoner,  were  in  the  prose- 
cuto)-'s  dove-cote,  over  a  stable  on  his  premises,  being  an  ordinary 
dove-cote,  and  having  holes  at  tlie  top  for  the  ingress  and  the  egress 
of  the  pigeons,  and  having  a  door  in  the  floor,  which  was  kept  locked. 
The  pi'isoner  entered  the  dove-cote  at  twelve  o'clock  at  night,  breaking 
open  the  door  and  taking  away  the  pigeons.  The  prisoner's  counsel 
contended  that  the  pigeons  being  at  liberty  at  an}-  time  to  go  in  and 
out  of  the  dove-cote,  and  therefore  not  reclaimed  and  in  a  state  of  con- 
finement, were  not  the  subjects  of  larcen}'.  The  chairman  directed 
the  jury  that,  in  his  opinion,  the  view  contended  for  by  the  prisoner's 
counsel  was  correct,  and  that  the  pigeons  were  not  properly  the 
subjects  of  larcen}'.  The  jur^'  found  the  [)risoner  guilty  of  larceny  ; 
but  judgment  was  postponed  to  ask  the  opinion  of  this  court  whether 
the  learned  chairman's  direction  to  the  jury  was  right,  and  whether  the 
prisoner,  under  the  facts  stated,  was  properly  convicted. 

The  case  was  not  argued  by  counsel. 

Lord  Campbell,  C.  J.,  delivered  the  judgment  of  the  court.  After 
reading  the  case,  his  Lordship  said  that  they  thought  the  direction  of 
the  chairman  was  clearly  wrong.  Pigeons  must,  from  the  nature  of 
them,  have  free  egress  to  the  open  air :  and  the  question  therefore  was, 
whether  there  could  be  a  larceny  of  tame  pigeons.  If  not,  neither 
could  there  be  larceny  of  chickens,  ducks,  or  any  poultry.  Whether 
thej-  were  tame  or  not  was  a  question  for  the  jury.  Luke's  case  (Rose. 
Cr.  Ev.  577)  is  said  by  Mr.  Greaves ^  to  have  been  determined  on  the 
ground  that  the  pigeons  were  reclaimed,  not  that  they  were  shut  up  in 
boxes.  It  had  been  mistakenly'  supposed  that  Baron  Parke  had 
decided  that  pigeons  were  not  the  subjects  of  larceny  unless  strictly 
confined  ;  there  is  no  question  that  they  are,  even  though  they  are 
allowed  the  liberty  of  going  to  enjoy  the  air  when  they  please. 

Co7ivictio7i  affirmed. 

1  The  passage  referred  to  is  in  2  Russ.  on  Crimes,  p.  83,  as  follows  :  "  Where 
pigeons  were  shut  up  in  their  boxes  every  night,  and  stolen  out  of  such  boxes  during  the 
night,  Parke,  B.,  held  it  to  be  larceny."  Upon  which,  in  Mr.  Greaves'  edition,  there 
is  the  following  note :  "  Luke's  case.  Rose.  Cr.  Evid.  577,  and,  ex  relatione,  Mr. 
Granger.  The  case  was  determined  on  the  ground  that  the  pigeons  were  reclaimed  ; 
and  not  on  the  ground  that  they  were  shut  up  in  their  boxes  at  the  time  they  were 
taken."  —  Rkp. 


BECT.  I.j  REGINA    V.    WATTS.  489 


REGINA  V.  WATTS. 
Crown  Case  Reserved.     1854. 

[Reported  6  Cox  C.  C.  304.] 

The  prisoner,  William  Mote  Watts,  was  indicted  at  the  Quartet 
Sessions  for  the  North  Riding  of  Yorkshire,  on  the  2d  of  June,  1853, 
for  steaUng  on  the  od  da}-  of  May,  1853,  a  piece  of  paper,  tiie  propert}' 
of  the  prosecutor,  Francis  Patteson,  and  was  convicted.  The  piece  of 
paper  found  to  have  been  stolen  had  written  upon  it  when  taken  by  the 
prisoner,  as  alleged  in  the  indictment,  an  agreement  between  the  prose- 
cutor and  the  prisoner,  signed  by  each  of  them.  The  agreement  could 
not  be  produced,  but  secondary  evidence  of  it  was  received,  from  which 
it  appeared  that  the  prisoner  contracted  thereby  to  build  two  cottages 
for  the  prosecutor,  for  a  sum  specified,  according  to  certain  plans  and 
specifications,  and  the  latter  agreed  to  pay  two  instalments,  being  part 
of  the  price  agreed  on,  at  certain  stages  of  the  works,  and  the  remain- 
der on  completion  ;  and  it  was  stipulated  that  any  alterations  that 
might  take  place  during  the  progress  of  the  building  should  not  affect 
the  contract,  but  should  be  decided  upon  by  the  employer  and  em- 
ployed, previous  to  such  alterations  taking  place.  Under  this  instru- 
ment the  work  was  commenced  and  continued.  At  the  time  when  it  was 
stolen  by  the  prisoner,  as  alleged,  the  work  was  going  on  under  it ; 
nevertheless  it  was  proved  at  the  trial  that  when  the  agreement  was 
stolen  the  prisoner  had  been  paid  all  the  money  which  he  was  entitled  to 
under  it,  although  there  was  money  owing  to  him  for  extras  and  alter- 
ations. The  agreement  was  unstamped.  The  counsel  for  the  prisoner 
objected  at  the  close  of  the  case  for  the  prosecution,  that  from  the 
evidence  it  was  clear  that  at  the  time  the  piece  of  paper  referred  to  in  the 
indictment  was  taken  by  the  prisoner,  it  was,  in  realit}',  a  subsisting 
and  valid  agreement,  and  therefore  not  the  subject  of  larceny  (as  a 
piece  of  paper  onlj)  at  common  law.  The  question  for  the  opinion  of 
the  court  is,  whether,  under  the  circumstances  above  stated,  the 
prisoner  could  be  lawfully  convicted  of  feloniously  stealing  a  piece  of 
paper,  as  charged  in  the  indictment.  No  judgment  was  passed  on  the 
prisoner,  and  he  was  discharged  on  recognizance  of  bail  to  appear  and 
receive  judgment  when  required. 

This  case  was  before  the  court  on  the  12th  November,  1853,  and 
was  sent  back  to  be  restated,  and  an  alteration  was  made  in  it  to  the 
effect  that  the  agreement  was  one  which  required  a  stamp.^ 

Lord  Campbell.  C.  J.  I  am  of  opinion  that  this  conviction  is 
wrong.  I  think  that  the  prisoner  could  not,  under  the  circumstances 
stated,  be  indicted  for  stealing  a  piece  of  paper.  If  the  agreement  had 
been  stamped,  it  seems  to  be  allowed,  notwithstanding  the  ingenious 

^  The  artjuments  are  omitted. 


490  KEGINA    V.    WATTS.  [CHAP.  VIII. 

argument  of  Mr.  Price,  that  an  indictment  for  stealing  a  piece  of  paper 
could  not  be  supported  ;  because  then  it  would  be  what  is  commonly 
called  a  chose  in  action,  and  b^-  the  common  law  larceny  cannot  be 
committed  of  a  chose  in  action.  Strictly  speaking,  the  instrument  of 
course  is  not  a  chose  in  action,  but  evidence  of  it,  and  the  reason  of 
the  common-law  rule  seems  to  be  that  stealing  the  evidence  of  the  right 
does  not  interfere  with  the  right  itself ;  jus  non  in  tabulis  ;  the  evidence 
may  be  taken  but  the  right  still  remains.  At  all  events,  whatever  be 
the  reason  of  the  rule,  the  common  law  is  clear  that  for  a  chose  in 
action  larceny  cannot  be  supported  ;  and  the  legislature  has  repeatedly 
recognized  that  rule  by  making  special  provision  with  regard  to  instru- 
ments which  are  choses  in  action,  and  of  which  but  for  those  enact- 
ments larceny  could  not  be  committed.  As  to  this  not  being  a  chose 
in  action,  because  all  that  was  due  had  been  paid  upon  it,  it  appears 
that  the  agreement  is  still  executory,  and  might  be  used  by  either  side  to 
prove  their  rights.  Then  comes  the  objection  as  to  its  not  being  stamped  ; 
but  though  it  is  not  stamped,  I  am  of  opinion  that  it  is  an  agreement. 
There  is  a  very  clear  distinction  between  instruments  which  without  a 
stamp  are  wholly  void,  and  those  which  may  be  rendered  available  at 
any  moment  by  having  a  stamp  impressed  upon  them.  There  are 
many  cases  in  which  an  unstamped  agreement  is  considered  evidence 
of  a  right.  AVhen  the  question  arises  at  Nisi  Prius,  as  soon  as  it 
appears  that  the  agreement  was  reduced  into  writing,  parole  evidence 
is  excluded,  because  the  written  instrument  is  the  proper  and  only 
evidence;  and  Bradley  v.  Bardsley  (14  M.  &  W.  873)  is  strong  to 
show  that  the  court  considers  an  unstamped  agreement  evidence  of  a 
rio-ht.  To  an  action  on  an  agreement  a  plea  that  it  was  not  stamped  is 
clearly  bad,  for  the  agreement  may  be  stamped  even  pending  the  trial, 
and  may  then  be  given  in  evidence,  as  the  stamping  reflects  back  to  the 
period  of  the  making  of  the  instrument.  I  agree  that  we  must  look  at 
the  state  of  the  instrument  at  the  time  of  the  larceny  committed  ;  but 
it  then  had  a  potentiality  of  being  rendered  available,  and  it  was 
evidence  of  an  agreement ;  it  was  therefore  evidence  of  a  chose  in 
action,  and  not  the  subject  of  larceny. 

Parke,  B.  I  am  of  opinion  that  the  conviction  is  right.  There 
is  no  doubt  that  at  common  law  larceny  cannot  be  committed  of  any 
instrument  which  is  the  evidence  of  a  chose  in  action  ;  but  I  think  that 
when  this  instrument  was  stolen  it  was  not  evidence  of  a  chose  in 
action.  Being  unstamped,  it  was  not  available  either  in  law  or  in 
equity,  and  by  the  operation  of  the  Stamp  Act  could  not  be  used  for 
the  purpose  of  showing  a  right.  It  was  a  piece  of  paper,  and  I  differ 
from  Lord  Campbell  in  thinking  that  the  potentiality  of  converting  a 
chattel  into  evidence  of  a  chose  of  action  is  sufficient  to  prevent  it 
from  being  the  subject  of  larceny.  Like  the  parchment  on  which  a 
deed  is  written,  and  which  is  nothing  but  a  piece  of  parchment  until 
the  instrument  is  perfected,  this  in  its  imperfect  state  was  no  evidence 
of  an  agreement,  but  was  a  piece  of  paper  only.     Where  a  plaintiflT  is 


SECT.  I.]  KEGINA    V.   WATTS.  491 

prevented  from  giving  parole  evidence  of  a  written  agreement,  it  is 
because  lie  had  the  power  of  giving  better  evidence  of  it  b\-  getting 
the  instrument  stamped,  and  if  he  does  not  get  it  stamped,  it  is  his  own 
fault.  If  the  instrument  is  lost  and  he  cannot  get  it  stamped,  then 
still  parole  evidence  of  it  is  inadmissible.  In  the  present  case  there- 
fore, I  think  that  that  which  was  stolen  was  merely  a  piece  of  paper 
capable  of  being  converted,  but  not  yet  actually  converted  into  a  valid 
agreement,  or  the  evidence  (jf  an  agreement,  and  it  is  solely  as  evi- 
dence of  an  agreement  that  the  common  law  would  prevent  it  from 
being  the  subject  of  larceny. 

Alderson,  B.  I  agree  with  Lord  Campbell  that  this  was  an  agree- 
ment at  the  time  it  was  stolen.  If  the  writing  only  becomes  an  agree- 
ment at  the  time  when  it  is  stamped,  how  is  it  that  you  ma}^  declare 
upon  an  unstamped  agreement?  If  the  agreement  only  dates  from  the 
stamping,  the  cause  of  action  does  not  arise  until  the  time  of  stamping, 
and,  therefore,  subsequently  to  the  declaration.  This  seems  to  prove 
that  the  thing  has  existence  as  an  agreement,  though  without  a  stamp 
it  is  not  admissible  in  evidence.  The  reason  why  title-deeds  and 
choses  in  action  are  not  the  subject  of  larceny,  is  because  the  parch- 
ment is  evidence  of  the  title  to  land,  and  the  written  paper  is  evidence 
of  a  right;  and,  though  the  instrument  is  stolen,  the  right  remains  the 
same.  It  has,  however,  no  existence  in  point  of  law,  as  a  piece  of 
paper  or  parchment  merely,  but  is  to  be  considered  as  part  of  the  right 
or  title  ;  and  the  extent  to  which  this  is  carried  appears  from  the 
passage  in  Lord  Coke  (3  Inst.  109),  in  which  even  the  box  containing 
tlie  charters  is  treated  as  part  of  the  title  also.  The  paper  becomes 
evidence  of  a  right,  and  ceases  to  have  any  existence  as  anything 
else. 

Coleridge,  J.  I  am  of  the  same  opinion  with  Lord  Campbell  and 
my  brother  Alderson.  It  is  admitted  that  if  this  agreement  had  been 
stamped,  it  would  not  have  supported  a  charge  of  stealing  a  piece  of 
paper,  a  higher  character  having  been  given  it,  and  its  character  as  a 
piece  of  paper  having  been  thereby  absorbed  ;  and,  though  unstamped, 
I  think  that  is  still  the  case.  If  the  objection  was  taken  at  Nisi  Prius, 
the  judge  would  look  at  the  paper  to  see  what  its  character  was  ;  it 
would  then  appear  to  have  written  on  it  an  agreement ;  and,  but  for 
the  Stamp  Act,  it  would  be  the  evidence  and  the  only  evidence  of  the 
agreement ;  and  even,  though  rendered  inadmissible  by  that  Act,  it  has 
the  effect  of  excluding  all  parole  evidence  of  that  contract.  It  is  true 
that  it  is  not  in  a  condition  in  which  it  can  be  effectually  sued  upon  ; 
but  it  is  capable  of  being  rendered  complete  as  evidence,  hy  being 
stamped  ;  and  it  would  not  acquire  any  new  character  by  the  stamp- 
ing; it  would  still  be  the  same  evidence  of  a  chose  in  action,  rendered 
admissible  in  evidence  by  reason  of  the  stamp.  As  soon  as  the  instru- 
ment is  signed  it  becomes  an  agreement,  and  it  is  only  because  the 
stamp  laws  interfere  that  it  is  prevented  from  being  used  in  evidence. 
The  point   is    extremely   subtle ;    and   one   regrets   that   the   fate  of 


492  REGINA    V.    SHICKLE.  [CHAP.  VIII. 

parties  in  a  court  of  justice  should  depend  upon  distinctions  so  nice ; 
but  upon  the  best  consideration  which  I  can  give  to  the  case,  it  seems 
to  nie  that  the  conviction  is  wrong. 

Maule,  J.  I  am  of  the  same  opinion.  I  tliink,  indeed  everybodj' 
thinlvs,  that  this  is  an  unstamped  agreement ;  and  if  it  is  an  agreement, 
it  is  not  the  subject  of  larceny.  When  one  speaks  of  a  piece  of  paper  as 
being  an  agreement,  it  means  that  the  paper  is  evidence  of  the  right ; 
and  as  a  right  cannot  be  the  subject  of  larceny,  neither  is  the  paper 
which  is  evidence  of  it. 

WiGHTMAN,  J.,  and  Cresswell,  J.,  concurred. 

Platt,  B.  I,  also,  am  of  the  same  opinion.  If  an  action  were 
brought  upon  this  instrument,  the  declaration  and  all  the  pleadings 
would  describe  it  as  an  agreement;  and  it  becomes  so,  in  my  opinion, 
as  soon  as  it  is  signed  by  both  parties,  though  not  available  in  evi- 
dence without  the  impression  of  a  stamp.  The  mode  of  taking  the 
objection  at  Nisi  Prius  proves  the  same  thing.  The  witness  is  asked 
whether  the  agreement  was  not  in  writing ;  and  when  be  answers 
"  3'es,"  and  the  instrument  is  produced,  the  judge  looks  at  it,  and 
finding  it  to  be  an  agreement  (because  upon  no  other  ground  could  he 
do  so),  rejects  it  for  want  of  a  stamp.  It  would  surely  be  strange  to 
hold  that  it  was  no  agreement  until  it  was  stamped,  when  the  necessity 
for  a  stamp  arises  from  its  being  an  agreement.  According  to  that 
argument,  if  the  instrument  is  stamped  the  prisoner  must  be  acquitted ; 
but  if  not  stamped,  convicted.  But  it  seems  to  me  that  that  would  be 
to  bring  a  man  within  the  reach  of  the  criminal  law  b}'  a  side  wind,  and 
a  degree  of  subtlet}'  consistent  neither  with  law  or  justice. 

Willia]\is,  J.,  and  Martin,  B.,  concurred. 

Crompton,  J.  I  think  there  is  sufficient  proof  that  this  was  a  sub- 
sisting agreement ;  and  it  wants  stamping  because  it  is  an  agreement. 

Conviction  reversed. 


REGINA   V.   SHICKLE. 

Crown  Case  Reserved.  1868. 

[Reported  L.  R.  1  C.  C.  7?.  158;  11  Cox  C.  C.  189.] 

The  following  case  was  stated  by  Cockburn,  C.  J. :  — 

James  Shickle  was  tried  before  me  at  the  last  assizes  for  the  County 

of    Suffolk   on   an   indictment   for  larceny   for   stealing   eleven   tame 

partridges. 

There  was  no  doubt  that  the  prisoner  had  taken  the  birds  animo 

furandi,  but  a  question  arose  whether  the  birds  in  question  could  be  the 

subject  of  larceny  ;  and  the  prisoner  having  been  convicted,  I  reserved 

the  point  for  the  consideration  of  the  court. 


SECT.  I.]  KEGINA   V.   SHICKLE.  493 

The  birds  in  question  bad  been  reared  from  eggs  which  had  been 
taken  from  the  nest  of  a  hen  partridge,  and  which  had  been  placed 
under  a  common  hen.  They  were  about  tln-ee  weeks  okl,  and  could  fly 
a  little.  The  hen  had  at  fust  been  kept  under  a  coop  in  the  prosecu- 
tor's orchard,  the  young  birds  running  in  and  out,  as  the  l)rood  of  a 
hen  so  confined  are  wont  to  do.  The  coop  had  however  been  removed 
and  the  hen  set  at  liberty,  but  the  young  birds  still  remained  about  the 
place  with  the  hen  as  her  brood  and  slept  under  her  wings  at  night. 

It  is  well  known  that  birds  of  a  wild  nature,  reared  under  a  common 
hen,  when  in  the  course  of  nature  they  no  longer  require  the  protection 
and  assistance  of  the  hen  and  leave  her,  betake  themselves  to  the 
woods  or  fields,  and  after  a  short  time  differ  in  no  respect  from  birds 
reared  under  a  wild  hen  of  their  own  species. 

The  birds  in  question  were  neither  tame  by  nature  nor  reclaimed. 
If  the}-  could  be  said  to  be  tame  at  all  it  was  only  that  their  instinct 
led  them  during  their  age  of  helplessness  to  remain  with  the  hen.  On 
their  attachment  to  the  hen  ceasing,  the  wild  instincts  of  their  nature 
would  return  and  would  lead  them  to  escape  from  the  dominion  and 
neighborhood  of  man.  On  the  other  hand,  from  their  instinctive  at- 
tachment to  the  hen  that  had  reared  them,  and  from  their  inability  to 
escape,  they  were  practically  in  the  power  and  dominion  of  the  prose- 
cutor. The  question  is  whether,  under  the  circumstances,  there  can  be 
such  property  in  birds  of  this  description  as  can  be  the  subject-matter 
of  larcenj'. 

Douglas,  for  the  prisoner.  These  birds  are  ferce  naturm,  and  unless 
reclaimed  are  not  the  subject  of  larceny.  The  case  finds  that  they 
were  not  tame  nor  reclaimed  ;  that  they  were  restrained  by  their  in- 
stinct only  from  betaking  themselves  to  the  woods  or  fields,  not  being 
confined  in  any  way.  They  could  not  therefore  be  the  subject  of 
larcen}-. 

No  counsel  appeared  for  the  Crown. 

BoviLL,  C.  J.  1  am  of  opinion  that  upon  the  facts  stated,  the  ques- 
tion asked  of  us  must  be  answered  in  the  affirmative,  and  that  the 
conviction  is  right.  The  case  states  that  "  from  their  inability  to  es- 
cape they  were  practically  in  the  power  and  dominion  of  the  prosecu- 
tor." That  is  sufficient  to  decide  the  point.  In  Regina  v.  Cory,  10  Cox 
C.  C.  23,  the  law  on  the  subject  is  very  clearly  laid  down  by  my  brother 
Channell.  He  there  says,  speaking  of  pheasants,  hatched  under  cir- 
cumstances similar  to  those  here:  ''These  pheasants,  having  been 
hatched  by  hens  and  reared  in  a  coop,  were  tame  pheasants  at  the 
time  they  were  taken,  whatever  might  be  their  destiny  afterwards. 
Being  thus,  the  prosecutor  had  such  a  property  in  them  that  they  would 
become  the  subject  of  larceny,  and  the  inquiry  for  stealing  them 
would  be  of  precisely  the  same  nature  as  if  the  birds  had  been  com- 
mon fowls  or  any  other  poultry,  the  character  of  the  birds  in  no  way 
affecting  the  law  of  the  case,  but  only  the  question  of  identity."  In 
that  statement  of  the  law  we  all  concur.     The  question  here  is.  Were 


494  STATE    V.    TAYLOR.  [CHAP.  VIII. 

these  birds  the  subject  of  property?  They  were  so  when  first  hatched, 
and  thej'  remained  so  at  the  time  they  were  taken  by  the  prisoner, 
though  it  might  be  that  at  a  later  period  they  would  become  wild 
and  cease  to  have  an  owner.  The  prisoner  therefore  was  rightly 
convicted. 

Channell,  B.,  concurred. 

Byles,  J.  I  am  of  the  same  opinion.  The  usual  cases  of  larceny 
of  animals  are  those  of  animals  which  being  at  first  wild  have  become 
tame  and  reclaimed.  In  this  case  the  only  difference  is  that  the  birds 
here  are  tame  and  have  been  so  from  their  birth,  though  the}'  may  be- 
come wild  at  a  future  time. 

Blackburn  and  Lush,  JJ.,  concurred. 


Conviction  affirmed. 


STATE   V.   TAYLOR. 
Supreme  Court  of  New  Jersey.     1858. 

[Reported  ^  Butcher,  Ml.] 

Green,  C.  J.^  The  indictment  charges  the  defendant  with  stealing 
"  eighteen  bushels  of  oysters,  of  the  value  of  eighteen  dollars,  of  the 
goods  and  chattels  of  one  George  Hildreth."  It  is  objected  that  oysters 
being  animals  ferce  naturce,  there  can  be  no  property  in  them,  unless 
they  be  dead  or  reclaimed,  or  tamed,  or  in  the  actual  power  or  posses- 
sion of  the  claimant ;  and  that  the  want  of  such  averment  is  a  fatal 
defect  in  the  indictment.  2  Bla.  Com.  390,  392;  Arch.  C.  P.  116;  3 
Chitty's  Cr.  L.,  947  ;  Wharton's  C.  L.  §§  1754-55. 

The  principle,  as  applied  to  animais^/eroe  naturm,  is  not  questioned. 
But  oj'sters,  though  usuall}-  included  in  that  description  of  animals, 
do  not  come  within  the  reason  or  operation  of  the  rule.  The  owner 
has  the  same  absolute  propert\-  in  them  that  he  has  in  inanimate  things 
or  in  domestic  animals.  Like  domestic  animals,  they  continue  perpetu- 
ally in  his  occupation,  and  will  not  stray  from  his  house  or  person. 
Unlike  animals y<er6e;i«fwrcB,  they  do  not  require  to  be  reclaimed  and 
made  tame  by  art,  industry,  or  education ;  nor  to  be  confined,  in  order 
to  be  within  the  immediate  power  of  the  owner.  If  at  libert}',  the}- 
have  neither  the  inclination  nor  the  power  to  escape.  For  tlie  purposes 
of  the  present  inquiry,  the}'  are  obviously  more  nearly  assimilated  to 
tame  animals  than  to  wild  ones,  and,  perhaps,  more  nearly  to  inanimate 
objects  than  to  animals  of  either  description.  The  indictment  could 
not  aver  that  the  oysters  were  dead,  for  they  would  then  be  of  no  value  ; 
nor  that  they  were  reclaimed  or  tamed,  for  in  this  sense  they  were  never 

1  See  also  Regina  v.  Head,  1  F.  &  F.  350. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  Part  of  the  opinion,  not 
involving  any  question  of  larceny,  is  omitted 


SECT.  I.]  STATE    V.    TAYLOR.  495 

wild,  and  were  not  capable  of  domestication ;  nor  that  they  were  con- 
fined, for  that  would  be  absurd.  The  only  averment  that  could  be 
made  is,  that  they  had  been  gathered,  or  were  in  the  actual  possession 
of  the  prosecutor,  which  certainly  is  not  necessary  in  order  to  sustain 
the  indictment.  Under  our  laws  there  may  V)e  property  in  oysters 
growing  naturally  upon  the  land  of  another  person,  and  wliich  the 
owner  may  have  acquired  l)y  purchase.  In  regard  to  tliese,  it  would 
not  be  averred  that  they  had  ever  been  gathered  or  been  under  the  con- 
trol of  the  owner  or  in  his  possession,  actual  or  constructive,  farther  than 
inanimate  objects  are  in  the  possession  of  the  owner,  upon  the  principle 
that  property  in  personal  chattels  draws  after  it  the  possession.  The 
indictment  is  not  defective. 

The  more  material  question  in  the  cause  is  whether,  upon  the  case 
stated,  the  oysters  in  question  were  the  subject  of  larceny.  Was  the 
law  upon  this  point  correctly  stated  in  the  charge  to  the  jury?  The 
jury  were  instructed  that  if  the  same  oysters  which  were  planted  by 
Hiidreth  were  unlawfully  taken  by  the  defendant,  with  the  intent  to 
steal  them  :  if  the  oysters  so  planted  could  be  easily  distinguished  from 
other  oysters  that  grew  in  the  sound  ;  if  they  were  planted  in  a  place 
where  oysters  did  not  naturally  grow  ;  if  the  place  where  they  were 
planted  was  marked  and  identified,  so  that  the  defendant  and  others 
going  into  the  sound  for  clams  and  oysters  naturally  growing  there 
could  readily  know  that  these  oysters  were  planted  and  held  as  private 
property,  and  were  not  natural  oysters,  or  in  or  upon  a  natural  oyster 
bed,  then  the  oysters  were  the  subject  of  larceny,  and  the  defendant 
might  be  convicted.  But  if  the  jury  believed  that  the  oysters  were 
planted  in  or  upon  a  natural  bed,  they  should  be  considered  as  aban- 
doned to  the  public,  and  not  the  property  of  Hiidreth  ;  or,  if  the  jury 
believed  that  the  planted  oysters  were  not  marked  and  identified,  as 
before  stated,  the  defendant  should  be  acquitted. 

There  is  clearly  nothing  in  the  charge  that  conflicts  with  the  well- 
settled  law  of  the  State,  as  decided  in  Arnold  v.  Mundy,  1  Halst.  1, 
namefy,  that  arms  of  the  sea,  including  both  the  waters  and  the  land 
under  the  waters,  for  the  purposes  of  navigation,  fishing,  and  all  other 
uses  of  the  water  and  its  products  are  common  to  all  the  people  of  the 
State.  Nor  is  tliere  anything  in  the  charge  in  conflict  with  the  princi- 
ples which  appear  to  have  been  adopted  by  the  court  in  the  earlier  case 
of  Shepard  and  Layton  v.  Leverson,  Penn.  391.  The  facts  in  evidence 
clearly  distinguish  the  present  case  from  that  of  Shepard  and  Layton  v. 
Leverson.  In  that  case  it  was  not  shown  that  the  oysters  taken  by  the 
defendant  were  the  identical  oysters  planted  by  the  plaintiff ;  nor  was 
there  any  mode  by  which  the  oysters  of  the  plaintiff  could  be  identified. 
Neither  of  those  difficulties  exists  in  the  present  case. 

The  oysters  in  question  had  once  been  the  property  of  Hiidreth.  The 
only  question  is,  whether  the  planting  of  these  oysters  in  a  public 
sound,  where  all  the  inhabitants  have  a  common  right  of  fishery,  was 
necessarily  an  abandonment,  or  a  return  of  the  property  to  the  common 


496  STATE    V.    TAYLOR.  [CHAP.  VIII. 

Stock.  There  was  clearly  no  intention  on  the  part  of  the  owner  to 
abandon  his  property  ;  on  the  contrary,  thej"  were  gathered  and  planted 
expressly  for  the  benefit  of  the  owner.  If  an  abandonment  is  to  be 
presumed,  it  will  be  a  legal  intendment  directly  against  the  truth  of  the 
case.  The  casting  of  property  into  the  sea,  with  the  intention  of  re- 
claiming it,  is  not  an  abandonment.  "  He,"  says  Domat,  "  who  finds 
a  thing  that  is  abandoned,  that  is,  of  which  he  who  was  master  of  it, 
quits  and  relinquishes  the  possession  and  properti/,  not  being  willing 
to  keep  it  any  longer,  becomes  master  of  it."  Domat's  Civ.  L.,  part  1, 
b.  3,  title  7,  §§  2,  9  (Am.  ed.  1850,  §  2154)  ;  2  Bla.  Com.  9,  402. 

It  was  held  by  the  Chief  Justice,  in  the  case  of  Shepard  and  Layton 
V.  Leverson,  that  the  mere  act  of  throwing  the  03'sters  into  a  public 
river,  where  all  the  inhabitants  have  a  common  right  of  fisher}-,  was  of 
itself  an  abandonment  in  law,  on  the  ground  that,  where  the  subject  is 
put  without  the  power  of  the  owner,  where  it  is  thrown  into  the  com- 
mon stocli:,  from  which  it  cannot  be  distinguished,  there  can  be  no 
question  of  intent.  It  was  held  analogous  to  the  case  of  a  deer  taken 
in  a  forest,  and  turned  loose  again.  But  it  was  admitted  that  where 
the  act  relied  on  as  an  abandonment  is  in  itself  equivocal,  and  where 
tlie  identical  property  ma}'  be  known  and  resumed  at  pleasure,  then  the 
intention  may  be  made  a  question.  Now  this  case  finds  that  the  oysters 
in  question  could  readil}'  be  identified  ;  that  no  oysters  grew  natui'ally 
where  the}'  were  planted,  and  that  the  spot  where  they  were  planted 
was  designated.  The  subject  of  the  property,  having  itself  no  power 
of  locomotion,  and  being  planted  where  no  other  oysters  naturally 
grew,  it  was  not  (as  in  the  case  of  the  deer  in  a  forest)  put  without  the 
power  of  the  owner,  nor  thrown  into  the  common  stock,  from  which  it 
could  not  be  distinguished. 

In  Fleet  v.  Hegeman,  14  Wend.  42,  it  was  held  by  the  Supreme 
Court  of  New  York  tliat  oysters  planted  by  an  individual  in  a  bed 
clearly  designated  in  a  bay  or  arm  of  the  sea,  which  is  a  common 
fishery,  are  the  property  of  him  who  planted  them,  and  that,  for  taking 
them  away  by  another,  trespass  lies.  This  case  was  approved  in  Decker 
V.  Fisher,  4  Barb.  592,  and  its  authority  recognized  in  the  more  recent 
case  of  Brinckerhofl  v.  Starkins,  11  Barb.  248  ;  Angell  on  Tide  Waters, 
139.  These  authorities  clearly  sU'Stain  the  instruction  given  to  the  jury 
in  the  present  case. 


SECT.  I.]  COMMONWEALTH   V.    SHAW.  497 

COMMONWEALTH   v.   SHAW. 
Supreme  Judicial  Court  of  Massachusetts.     1862. 

{Reported  4  Allen,  308.] 

Indictment  for  larceny  of  several  hundred  "  cubic  feet  of  illuminat- 
ing gas,  each  cubic  foot  being  of  the  value  of  three  mills,  of  the 
property,  goods,  and  chattels  of  the  Boston  Gas  Light  Company-. " 

At  the  trial  in  the  SujDerior  Court,  before  Wilkinson,  J.,  it  appeared 
that  the  defendant  occupied  a  house  in  Ashland  Street  in  the  city  of 
Boston,  and  that  a  service  pipe  of  the  Boston  Gas  Light  Company  led 
from  their  main  pipe  in  that  street  to  within  a  short  distance  of  a  gas 
meter  owned  by  them  and  placed  under  the  front  steps  outside  of  the 
wall  of  the  house,  but  upon  the  premises  occupied  by  her,  and  the  de- 
fendant made  the  usual  connection  from  the  service  pipe  with  the  inside 
suppl}^  pipe  b}'  short  pieces  of  lead  pipe  belonging  to  her,  through  which 
the  company  had  supplied  her  with  gas  ;  but,  upon  non-payment  of  the 
gas  rates,  the  company  removed  the  meter  and  shut  off  the  gas  by 
closing  a  stopcock  in  the  service  pipe,  upon  the  premises  occupied  by 
her,  and  gave  her  notice  thereof;  after  which  she,  without  the  consent 
or  knowledge  of  the  compan}',  and  to  avoid  paying  for  the  gas,  made  a 
connection  hy  means  of  lead  pipe  between  the  service  pipe  and  the  pipe 
inside  of  the  house,  and  turned  the  cock  in  the  service  pipe,  and  received 
and  consumed  gas  belonging  to  the  company.  There  was  no  question 
that  the  company  was  legally  incorporated. 

The  defendant  requested  the  court  to  instruct  the  jur}-  that  no  con- 
viction could  be  had  under  this  evidence  ;  but  the  judge  instructed  the 
jury  that,  if  they  were  satisfied  that  the  defendant  took  the  gas  with  a 
felonious  intent,  she  was  guilty  of  larceny.  The  jury  returned  a  verdict 
of  guilty,  and  the  defendant  alleged  exceptions  to  this  ruling,  as  well  as 
to  an  order  of  the  judge  overruling  a  motion  in  arrest  of  judgment  on 
the  ground  that  the  indictment  was  insufficient  in  law. 

J.  F.  Pickering,  for  the  defendant. 

G.  P.  Sanger  (district  attorney),  for  the  Commonwealth. 

Bigelow,  C.  J.  We  cannot  doubt  that  the  instructions  given  to  the 
jury  in  this  case  were  right.  There  is  nothing  in  the  nature  of  gas  used 
for  illuminating  purposes  which  renders  it  incapable  of  being  feloniousl}' 
taken  and  carried  away.  It  is  a  valuable  article  of  merchandise,  bought 
and  sold  like  other  personal  property,  susceptible  of  being  severed  from 
a  mass  or  larger  quantit}',  and  of  being  transported  from  place  to  place. 
In  the  present  case  it  appears  that  it  was  the  property  of  the  Boston 
Gas  Light  Company  ;  that  it  was  in  their  possession  by  being  confined 
in  conduits  and  tubes,  which  belonged  to  them,  and  that  the  defendant 
severed  a  portion  of  that  which  was  in  a  pipe  of  the  company'  b}'  taking 
it  into  her  house  and  there  consuming  it.  All  this,  being  proved  to 
have  been  done  b}'  her  secretly,  and  with  an  intent  to  deprive  the  com- 


498  MULLALY    V.   PEOPLE.  [CHAP.  YIII. 

pan}'  of  their  propert}-,  and  to  appropriate  it  to  her  own  use,  clearly 
constituted  the  crime  of  larceny'. 

It  was  suggested  by  the  counsel  for  the  defendant  that,  if  she  was 
guilty  of  an}-  offence,  it  was  not  larceny,  but  embezzlement,  inasmuch 
as  it  appeared  that  the  gas  was  intrusted  to  her  possession  by  the  com- 
pany, and  that  at  the  time  of  the  alleged  felonious  taking  she  was  the 
bailee  thereof  But  the  facts  proved  entire!}'  negative  the  existence  oi 
an}-  such  relation  between  her  and  the  company.  The  gas  was  not  in 
her  possession.  On  the  contrary,  the  pipe  had  been  severed  from  the 
meter  by  closing  a  stopcock  in  the  service  pipe,  which  belonged  to  the 
company,  for  the  very  purpose  of  preventing  her  obtaining  possession 
of  it.  The  fact  that  the  end  of  the  pipe  was  on  the  premises  occupied 
by  her  is  wholly  immaterial.  It  was  not  placed  there  to  be  in  her  cus- 
tody or  control,  and  she  had  no  possession  of  it  or  its  contents.  The 
facts  proved  at  the  trial  ai'e  similar  to  those  which  were  shown  to  exist 
in  the  case  of  Regina  v.  White,  6  Cox  C.  C.  213,  in  which  a  conviction 
of  the  defendant  for  the  larceny  of  gas  was  affirmed  by  the  court  of 
criminal  appeal.  That  case,  however,  was  not  so  strong  against  the 
defendant  as  the  present  one,  because  it  there  appeared  that  the  owners 
of  the  gas  had  not  caused  it  to  be  shut  off  from  the  premises  of  the 
defendant,  to  prevent  him  from  making  use  of  it. 

As  it  is  admitted  that  the  acts  charged  on  the  defendant  were  com- 
mitted prior  to  the  time  when  St.  1861,  c.  168,  took  effect,  its  provisions 
can  in  no  way  affect  the  present  case.^ 

Exceptions  overruled. 


MULLALY   V.   PEOPLE. 

Court  of  Appeals  of  New  York.     1881. 

[Reported  86  New  York,  365.] 

Error  to  the  General  Term  of  the  Supreme  Court,  in  the  first  judi- 
cial department,  entered  upon  an  order  made  May  20,  1881,  which 
affirmed  a  judgment  of  the  Court  of  General  Sessions  in  and  for  the 
county  of  New  York,  entered  upon  a  verdict  convicting  the  plaintiff  in 
error  of  the  crime  of  petit  larceny  in  stealing  a  dog.^ 

Earl,  J.  The  prisoner  was  convicted  of  stealing  a  dog  of  less  value 
than  $25.  His  counsel  contended  at  the  trial  and  has  argued  before  us 
that  stealing  a  dog  is  not  larceny,  and  whether  it  is  or  not  is  the  sole 
question  for  our  present  determination. 

The  learned  opinion  i)ronounced  at  the  general  term  leaves  but  little 
to  be  written  now.  At  common  law  the  crime  of  larceny  could  not  be 
committed  by  feloniously  taking  and  carrying  away  a  dog.     Wharton's 

*  See  Ferens  v.  O'Brien,  11  Q.  B.  D.  21  (larceny  of  water).  —  Ed. 
2  Arguments  of  counsel  are  omitted. 


SECT.  I.J  MULLALY   V.   PEOPLE.  499 

Cr.  Law  (4tli  ed.),  §  1755;  4  Black.  Com.  235;  1  Hale's  Pleas  of  the 
Crown,  510;  Coke's  Third  Inst.  109.  And  yet  dogs  were  so  far  re- 
garded as  property  that  an  action  of  trover  could  be  brought  for  their 
conversion,  and  thej-  would  pass  as  assets  to  the  executor  or  adminis- 
trator of  a  deceased  owner.  Bacon's  Abr.,  Trover,  D.  ;  1  Wins,  on 
Ex'rs  (6th  Am.  ed.),  775. 

The  reason  generally  assigned  by  common-law  writers  for  this  rule  as 
to  stealing  dogs  is  the  baseness  of  their  nature,  and  the  fact  that  they 
were  kept  for  the  mere  whim  and  pleasure  of  their  owners.  When  we 
call  to  mind  the  small  spaniel  that  saved  the  life  of  William  of  Orange, 
and  thus  probably  changed  the  current  of  modern  history  (2  Motley's 
Dutch  Republic,  398),  and  the  faithful  St.  Bernards,  which  after  a 
storm  has  swept  over  the  crests  and  sides  of  the  Alps  start  out  in  search 
of  lost  travellers,  the  claim  that  the  nature  of  a  dog  is  essentially  base, 
an<l  that  he  should  be  left  a  prey  to  every  vagabond  who  chooses  to  steal 
him,  will  not  now  receive  ready  assent. 

In  nearly  every  household  in  the  land  can  be  found  chattels  kept  for 
the  mere  whim  and  pleasure  of  the  owner,  a  source  of  solace  after 
serious  labor,  exercising  a  refining  and  elevating  influence,  and  yet  they 
are  as  much  under  the  protection  of  the  law  as  chattels  purely  useful 
and  absolutely  essential. 

This  common-law  rule  was  extremel}'  technical,  and  can  scarcely  be 
said  to  have  had  a  sound  basis  to  rest  on.  While  it  was  not  larceny  to 
steal  a  dog,  it  was  larceny  to  steal  the  skin  of  a  dead  dog,  and  to  steal 
many  animals  of  less  account  than  dogs.  Lord  Coke,  in  his  Institutes, 
cited  above,  said:  "Of  some  things  that  he  ferce  naturce,  being  re- 
claimed, felony  may  be  committed  in  respect  of  their  noble  and  generous 
nature  and  courage,  serving  ob  vitce  solatium  of  princes  and  of  noble 
and  generous  persons  to  make  them  fitter  for  great  employments,  as  all 
kinds  of  falcons  and  other  hawks,  if  the  party  that  steals  them  know 
they  be  reclaimed." 

In  the  reign  of  William  I.  it  was  made  grand  larceny  to  steal  a 
chattel  valued  at  twelve  pence  or  upwards,  and  grand  larceny  was  pun- 
ishable by  death,  and  one  reason  hinted  at  by  Lord  Coke  for  holding 
that  it  was  not  larceny  to  steal  dogs  was  that  it  was  not  fit  that  "  a  per- 
son should  die  for  them  ;  "  and  yet  those  ancient  law-givers  thought  it 
not  unfit  that  a  person  should  die  for  stealing  a  tame  hawk  or  falcon. 

The  artificial  reasoning  upon  which  these  rules  were  based  is  wholly- 
inapplicable  to  modern  society,  Tempora  mutantur  et  leges  mutan- 
tur  in  illis.  Large  amounts  of  money  are  now  invested  in  dogs,  and 
they  are  largely  the  subjects  of  trade  and  traffic.  In  many  wa3s  they 
are  put  to  useful  service,  and  so  far  as  pertains  to  their  ownership 
as  personal  property,  they  possess  all  the  attributes  of  other  personal 
property. 

If  the  common-law  rule  referred  to  ever  prevailed  in  this  State,  we 
have  no  doubt  it  has  been  changed  by  legislation.  It  is  provided  in 
2  R.  S.  690,  §  1,  that  every  person  who  shall  be  convicted  of  stealing 


500  MULLALY  V.    PEOPLE.  [CHAP.  VIII. 

*'the  personal  property"  of  another,  of  the  value  of  $25  or  under, 
shall  be  adjudged  guilty  of  petit  larceny  ;  and  then,  on  page  703,  §  33, 
''personal  property,"  as  used  in  that  chapter,  is  defined  to  mean 
''goods,  chattels,  effects,  evidences  of  rights  of  action,"  and  certain 
written  instruments.  This  definition  of  personal  property  is  certainly 
comprehensive  enough  to  include  dogs.  We  think  it  was  intended  to 
he  taken  literally,  and  that  the  law-makers  meant  to  make  it  the  crime 
of  larceny  to  steal  any  chattel  which  had  value  and  was  recognized  by 
the  law  as  property.  In  a  note  to  §  33  (3  R.  S.  837),  the  revisers 
say  that  "this  broad  and  comprehensive  definition  is  given  to  prevent 
the  enumeration  of  each  particular  instrument  or  article  that  may  be 
the  subject  of  larceny,  robbery,  embezzlement,  or  obtaining  property 
under  false  pretences.  The  ancient  idea  that  rights  in  action  were  not 
subjects  of  larceny  has  been  gradually  yielding  to  the  extension  of 
commerce,  the  increase  of  business,  and  the  necessities  of  mankind, 
until  at  last  we  have  begun  to  believe  that  anything  which  can  be 
stolen,  and  which  is  of  value  to  the  owner,  should  be  protected  by  the 
law."  At  the  same  time  a  system  for  the  taxation  of  dogs  was  enacted 
(1  R.  S.  704),  and  it  can  scarcely  be  supposed  that  the  legislature  meant 
to  re<yard  dogs  as  property  for  tlie  purpose  of  taxation  and  yet  leave 
them  without  protection  against  thieves. 

The  definition  of  personal  property  found  in  the  statute  is  not  to  be 
referred  to  the  common  law,  but  to  the  common  understanding  of  the 
time  when  the  statute  was  enacted. 

In  view,  therefore,  of  all  the  circumstances  to  which  we  have  alluded, 
and  for  all  the  reasons  stated,  we  are  of  opinion  that  the  law-makers 
intended,  bv  the  legislation  contained  in  the  Revised  Statutes,  to  change 
the  common-law  rule  as  to  stealing  dogs,  if  it  was  before  recognized  as 
havino-  force  in  this  State  ;  and  to  this  effect  are  the  only  judicial  de- 
cisions upon  this  subject  which  have  been  rendered  in  this  State,  so  far 
as  thev  have  come  to  our  knowledge.  People  v.  Maloney,  1  Park.  Cr. 
593  ;  People  v.  Campbell,  4  id.  386  ;  see,  also,  People  ex  rel.  Longwell 
V.  McMaster,  10  Abb.  (N.  S.)  132. 

Our  attention  has  been  called  by  the  counsel  for  the  prisoner  to  cer- 
tain decisions  in  other  States,  which  tend  to  sustain  his  contention. 
Pindlay  v.  Bear,  8  Serg.  &  Rawle,  571  ;  State  of  Ohio  v.  Lymus,  26 
Ohio  St.  400  ;  State  v.  Holder,  81  N.  C  527  ;  AYard  v.  State,  48  Ala. 
161.  But  so  far  as  those  cases  announce  views  in  conflict  with  those 
above  expressed,  we  are  not  disposed  to  follow  them. 

We  conclude,  therefore,  that  the  conviction  was  right,  and  should  be 

affirmed. 

All  concur,  except  Folger,  C.  J.,  dissenting,  holding  that  the  com- 
mon law  does  not  recognize  a  dog  as  the  subject  of  larceny,  and  that 
the  Revised  Statutes,  in  its  definition  of  the  subjects  of  larceny,  do  not 
include  that  animal.  Judgment  affirniecU 

1  Ace.  Haywood  v.  State,  41  Ark.  479.  See  Hurley  v.  State,  30  Tex.  App. 
333.  — Ed. 


SECT.  I.]  EEGINA   V.    MORRISON.  501 


REGINA   V.  MORRISON. 

Crown  Case  Reserved.     1859. 

[Reported  Bdl  C.  C.  158.] 

Crompton,  J.     We  are  of  opinion  that  this  conviction  is  right,  and 
ought  to  be  affirmed.     The  question  is  whether  a  pawnbroker's  ticket, 
in  the  usual  form,  is  the  subject  of  larceny,  and  is  properly  described 
either  as  a  warrant  for  the  delivery  of  goods,  a  pawnbroker's  ticket,  or 
a  piece  of  paper.     We  think  that   the    instrument   in    question   is  a 
''warrant  for  the  delivery  of  goods"  within  the  meaning  of  the  7  &  8 
Geo.  4,  c.  29,  s.   5,  and  that  the  stealing  of  such  a  document  is  an 
offence  subjecting  the  offender  to  the  same  punishment  as  if  he  had 
stolen  chattels  of  the  like  value  as  the  value  of  the  goods  mentioned  in 
the  document.  .  .  .^     But,  supposing  such  a  ticket  not  to  be  a  warrant 
for  the  delivery  of  goods  within  the  provisions  of  that  statute,  we  are 
of  opinion,  on  the  other  point  in  the  case,  that  the  conviction  was  right 
as  for  stealing  a  pawnbroker's  ticket  or  piece  of  paper.    It  clearly  is  so 
unless  it  fall  within  the  rule  of  the  common  law  by  which  certain  docu- 
ments of  title,  and  certain  documents  concerning  mere  choses  in  action, 
were  not  the  subjects  of  larceny.     We  are  not  at  liberty  to  infringe 
a  rule  so  long  settled,  and  which  has  been  acted  upon  until  the  present; 
time,  but  we  should  be  very  reluctant  to  extend  such  a  rule,  and  wt; 
ought  to  be  careful  not  to  apply  it  to  cases  to  which  the  authorities  do 
not  clearly  shew  it  to  be  applicable.     The  state  of  the  law  in  this  le 
spect  was   well  remarked  upon    a   hundred  years  ago   by  counsel  — 
Strange,  1135,  Rex  v.  Westbeer.    He  says,  "  If  I  steal  a  skin  of  parch- 
ment worth  a  shilling,  it  is  a  felony,  but  when  it  has  10,000/.  added  t^ 
its  value  by  what  is  written  upon  it,  it  is  no  offence  to  take  it  away  ;  " 
and  he  proceeds  to  say,  "The  use  to  be  made  of  this  observation  is, 
that  so  far  as  the  law  is  settled,  it  is  not  to  be  altered  ;  but  if  it  doeii 
not  exempt  this  particular  case,  there  is  no  reason  to  exclude  it;  "  a.ir'. 
in  this  remark  we  fully  concur.    Documents  of  title  to  real  property  ave 
not  the  subject  of  larceny,  but  we  find  no  rule  extending  such  doctrlntd 
to  documents  and  tokens  shewing  a  right  to  personal  property  ;  auc?, 
the  way  in  which  the  rule  is  enunciated  as  to  real  property  seems  to 
shew  that  it   does    notapply  to   documents   relating   to   personalty 
Again,  if  it  is  a  document  relating  to,  or  concerning  a  mere  chose  i,i 
action,  as  a  bond,  bill,  or  note,  that  is,  as  I  understand   it,  a  matter 
resting  in  contract,  and  giving  a  right  by  way  of  contract  only,  it  is  not 
the  subject  of  larceny.     In  the  Queen  v.  Watts,  Dears.  C.  C.  R.  326, 
Alderson,  B.,  asks,  "  Is  not  the  reason  why  a  chose  in  action  is  not  the 
subject  of  larceny  this,  because  it  is  evidence  of  a  right,  and  that  you 
cannot  steal  a  man's  right"?     And  Maule,  J.,  page  335,  observes: 
1  The  discussion  on  this  point  is  omitted.  —  Eo. 


502  EEGINA   V.   MORRISON.  [CHAP.  VIII. 

"  When  one  speaks  of  a  piece  of  paper  as  being  an  agreement,  it  means 
that  the  paper  is  evidence  of  a  right,  and,  as  a  right  cannot  be  the 
subject   of  larceny,  neither  is  the    paper,   which  is  evidence   of  it." 
Wliere,  however,  the  thing  represented  by  the  paper  is  not  a  mere 
right  of  contract  or  chose  in  action,  but  is  a  personal  chattel,  to  the 
property  and  right  of  possession  of  which  the  party  has  a  right  to  treat 
himself  as  entitled,  the  rule  does  not  seem  to  apply.     The  thing  to 
which  the  document  has  reference  is  personal  property  which  may  be 
stolen  ;  and   the  words  in  which  tlie  rule  is  enunciated  appear  to  us 
to  treat  such  documents  as  not  within  the  exception.     The  rule  will 
be  found  laid  down  in  the  same,  or  nearly  the  same,  words  from  the 
earliest  time;  see  Roscoe's   Criminal   Law,   by  Power,    612,  and  the 
authorities  there  cited.     This  rule  is  stated  to  be  "that  bonds,  bills, 
and  notes,  which  concern  mere  choses  in  action,  were  held  at  common 
law  not  to  be  such  goods  whereof  felony  miglit  be  committed,  being  of 
no  intrinsic  value,  and  not  importing  any  property  in  possession  of  the 
party  from  whom  they  are  taken."    This  cleaily  excludes  from  the  rule 
documents  of  title  importing  property  in  possession  of  the  party,  and, 
remembering  the  former  part  of  the  rule,  as  to  documents  of  title,  so 
carefully  confined  to  realty,  we  think  that  such  documents  of  title  to 
personalty  cannot   be   considered    within    the  rule.     If   it    is  a  mere 
agreement  to  deliver  property,  not  tlie  party's  own,  or  not  specific,  it 
would,  we   think,   be   within   the  rule.     It  v.-ould   rest   in    agreement, 
would  confer  a  right  of  action  only,  and  would  be  in  every  respect  a 
chose  in  action.    But  we  look  at  the  pawnbroker's  ticket  as  importing  a 
property    in   possession.     We   had    some    doubt  at    first  whether   the 
party  could  be  said  to  have  the  right  to  the  property  in  possession 
according  to  the  meaning  of  the  rule  ;   but  it  is  quite  clear  that  the 
possession  of  the  bailee,  or  pawnee,  is  the  possession  of  the  bailor  or 
pawnor  for  the  purpose  of  an  indictment,  and  lie  has  a  right  to  lay  the 
goods  pawned  or  bailed  as  his  goods,  that  is,  as  goods  his  property  and 
in  his  possession  :  goods  pawned,  and  the  like,  may  be  laid  to  be  the 
goods  and  chattels  of  the  person  to  whom  they  are  so  entrusted,  or  of 
the  owner,  at  the  option  of  the  prosecutors;  see  Jervis  Archbold,  by 
Welsb^-,  14th  edition,  34,  where  the  authorities  on  this  subject  are  col- 
lected.    We  think,  therefore,  that  we  should  be  extending  the  rule 
further  than  we  are  warranted  by  any  authority  in  doing  if  we  were 
to  hold  that  it  extended   further  than   to  cases   where  the  document 
concerns  choses  in  action  merely,  and  is  only  an  agreement  to  deliver 
personal    property,  not   the  party's  own  ;    and  we  think    that   in    the 
present  case  the  document  relates  to  personal  property  to  which  the 
party  is  entitled,  and  that  he  is  not  the  less  entitled  to  the  possession 
because  there  is  a  lien,  which  there  is  in  so  many  cases  of  bailment, 
where  such  lien  does  not  interfere  with  the  right  of  property  or  posses- 
sion as  far  as  concerns  indictments.     It  should  be  observed  tliat  this 
construction  by  no  means  makes  the  provisions  of  the  7  &  8  Geo.  4 
useless,  as  that  statute  has  the  effect  of  making  the  stealing,  which 


SECT.  I.]  EEGINA   V.   MORRISON.  503 

might  otherwise  be  the  stealing  of  a  chattel  of  extremely  small  value, 
a  stealing  of  a  chattel  of  the  like  value  as  the  value  of  the  goods  men- 
tioned in  the  document;  and  as  there  may  be  cases  of  orders  for  the 
delivery  of  goods  wliieli  import  no  propcrt}'  in  any  specific  goods, 
and  where  the  rights  of  tlie  holder  may  only  depend  on  a  contract 
to  deliver  some  goods,  so  that  the  document  is  in  effect  the  evidence 
of  a  mere  chose  in  action,  and  would  not  be  the  subject  of  larceny 
if  not  within  the  provisions  of  the  statute.  We  should  add  that  it 
would  be  very  difficult  to  hold  the  present  ticket  not  to  be  the  subject 
of  larceny  without  overruling  the  case  of  Regina  v.  Boulton,  1  Den.  C. 
C.  R.  508,  a  decision  in  this  court  binding  upon  us.  It  was  there  held 
that  a  railway  ticket  in  the  usual  form  was  a  chattel,  and  the  subject  of 
an  indictment  for  obtaining  goods  under  false  pretences.  That,  like 
the  ticket  in  the  present  case,  was  in  the  nature  of  a  token,  and  it  evi- 
denced the  right  of  being  carried  on  the  railway  without  further 
charge,  and  it  was  more  in  the  nature  of  a  mere  agreement  and 
of  a  document  concerning  a  mere  chose  in  action  than  the  present, 
where  it  imported  a  right  to  personal  property.  The  court  held  it, 
however,  to  be  a  chattel,  valuable  as  conferring  the  privilege  of  travel- 
ling without  further  payment.  If  the  ticket  in  the  present  case  be  the 
subject  of  larceny,  and  not  within  the  exception  referred  to,  the 
description  of  a  "pawnbroker's  ticket,"  or  of  a  "  piece  of  paper,"  is 
clearly  sufficient.  For  these  reasons  we  think  that  the  conviction  is 
right,  and  that  it  ought  to  be  affirmed.  Conviction  Affirmed. 


504  EEX    V.    WALSH.  [CHAP.  VIII. 

SECTION  11. 

Possession. 
(a)  The  Act  of  Assuming  Possession. 

REX  V.  WALSH. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moodi/  C.  C.  14.] 

The  prisoner  was  tried  before  Tlioraas  Denman,  Esquire,  Common 
Serjeant,  at  tlie  Old  Bailey  Sessions,  January,  1824,  on  an  indictment 
for  stealing  a  leathern  bag  containing  small  parcels,  the  property  of 
William  Ra}',  the  guard  to  the  Exeter  mail. 

At  the  trial  it  appeared  that  tlie  bag  was  placed  in  the  front  boot, 
and  the  prisoner,  sitting  on  the  box,  took  hold  of  the  upper  end  of  the 
bag,  and  lifted  it  up  from  the  bottom  of  the  boot  on  which  it  rested. 
He  handed  the  upper  part  of  the  bag  to  a  person  who  stood  beside 
the  wheel  on  the  pavement,  and  both  had  hold  of  it  together,  endeavor- 
ing to  pull  it  out  of  the  boot,  with  a  common  intent  to  steal  it.  Before 
they  were  able  to  obtain  complete  possession  of  the  bag,  and  while 
they  were  so  engaged  in  trying  to  draw  it  out,  they  were  interrupted  by 
the  guard  and  dropped  the  bag. 

The  prisoner  was  found  guilt}-,  but  the  facts  above  stated  were  spe- 
ciall}-  found  by  the  jury,  in  answer  to  questions  put  to  them  b}-  the 
Common   Serjeant. 

The  Common  Serjeant  entertaining  some  doubts  whether  the  prisoner 
could  be  truly  said  to  have  "  stolen,  taken,  and  carried  away"  the  bag, 
he  respited  the  judgment,  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

In  Easter  terra,  1824,  the  judges  met  and  considered  this  case. 
The}'  held  the  conviction  right,  being  of  opinion  that  there  was  a 
complete  asportation  of  the  bag.-^ 

1  Ace.  Rex  V.  Lapier,  2  East  P.  C.  557  ;  Harrison  v.  People,  50  N.  Y.  518  ;  State  v. 
Jones,  65  N.  C.  395  ;  State  v.  Craige,  89  N.  C.  475 ;  Eckels  v.  State,  20  Ohio  St.  508 ; 
State  V.  Chambers,  22  W.  Va.  779.  —Ed. 


SECT.  II.j  REGINA   V.   WHITE.  505 


REGINA  V.  WHITE. 
Crown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  213;  Deavslei/  C.  C.  203.] 

The  prisoner  was  indicted  at  the  last  Quarter  Sessions  for  Berwick- 
upon-Tweed  for  stealing  5000  cubic  feet  of  carburetted  hydrogen  gas  of 
the  goods,  chattels,  and  property  of  Robert  Oswald  and  others.  Mr. 
Oswald  was  a  partner  in  the  Berwick  Gas  Company,  and  the  prisoner, 
a  householder  in  Berwick,  had  contracted  with  the  company  lor  the 
sui)ply  of  his  house  with  gas  to  be  paid  for  by  meter.  The  meter, 
which  was  hired  by  the  prisoner  of  the  company,  was  connected  with 
an  entrance  pipe,  through  which  it  received  the  gas  from  the  companj's 
main  in  the  street,  and  an  exit  pipe  through  which  the  gas  was  con- 
veyed to  the  burners.  The  prisoner  had  the  control  of  the  stopcock  at 
the  meter,  by  which  the  gas  was  admitted  into  it  through  the  entrance 
pipe,  and  he  only  paid  the  company  and  had  only  to  pay  them  for  such 
quantity  of  gas  as  appeared  by  the  index  of  the  meter  to  have  passed 
through  it.  The  entrance  and  exit  pipes  were  the  property  of  the 
prisoner.  The  prisoner,  to  avoid  paying  for  the  full  quantity  of  gas 
consumed,  and  without  the  consent  or  knowledge  of  the  compan}',  had 
caused  to  be  inserted  a  connecting  pipe  with  a  stopcock  upon  it  into 
the  entrance  and  exit  pipes  and  extending  between  them ;  and  the 
entrance  pipe  being  charged  with  the  gas  of  the  company,  he  shut  the 
stop-cock  at  the  meter  so  that  gas  could  not  pass  into  it,  and  opened 
the  stop-cock  in  the  connecting  pipe,  when  a  portion  of  the  gas  as- 
cended through  the  connecting  pipe  into  the  exit  pipe  and  from  thence 
to  the  burners  and  was  consumed  there,  and  the  gas  continued  so  to 
ascend  and  be  consumed  until  by  shutting  the  stop-cock  in  the  con- 
necting pipe  the  supply  was  cut  off.  This  operation  was  proved  to 
have  taken  place  at  the  time  specified  by  the  prosecutor.  It  was  con- 
tended for  the  prisoner  that  the  entrance  pipe  into  which  the  gas 
passed  from  the  main  being  the  property-  of  the  prisoner,  he  was  in 
lawful  possession  of  the  gas  bj'  the  consent  of  the  company  as  soon  as 
it  had  been  let  into  his  entrance  pii)e  out  of  their  main,  and  that  his 
diverting  the  gas  in  its  course  to  the  meter  was  not  an  act  of  larcen}-. 
I  told  the  jury  that  if  they  were  of  opinion  on  the  evidence  that  the 
entrance  pipe  was  used  by  the  compan}'  for  the  conveyance  of  the  gas 
b}'  the  permission  of  the  prisoner,  but  that  he  had  not  by  his  contract 
any  interest  in  the  gas  or  right  of  control  over  it  until  it  passed  through 
the  meter,  his  property  in  the  pipe  was  no  answer  to  the  charge  ;  that 
there  was  nothing  in  the  nature  of  gas  to  prevent  its  being  the  subject 
of  larceny  ;  and  that  the  stopcock  on  the  connecting  pipe  being  opened 
by  the  prisoner,  and  a  portion  of  the  gas  being  propelled  through  it  by 
the  necessary  action  of  the  atmosphere  and  consumed  at  the  burners, 
there  was  a  sufficient  severance  of  that  portion  from  the  volume  of  gas 


506  REGINA    V.   WHITE.  [CHAP.  VIII. 

in  the  entrance  pipe  to  constitute  an  asportavit  by  the  prisoner ;  and 
that  if  the  gas  was  so  abstracted  with  a  fraudulent  intent  he  was  guilty 
of  larceny.  The  jury  answered  the  questions  put  to  them  in  the  affir- 
mative and  found  the  prisoner  guilty  ;  I  postponed  judgment,  taking 
recognizance  of  bail  according  to  the  statute  for  the  appearance  of  the 
prisoner  at  the  next  Sessions  to  receive  judgment  if  this  court  should 
be  of  opinion  that  he  was  rightly  convicted. 

Ballantine  for  the  prisoner.  The  prisoner  was  not  guilty  of  larceny. 
He  received  the  gas  with  the  full  consent  of  the  company,  and  the 
evidence  only  shows  that  he  did  not  account  with  the  company  accord- 
ing to  his  contract.  The  prisoner  was  guilty  of  fraud  in  evading  the 
accounting  by  the  meter,  but  his  conduct  was  not  felonious. 

Lord  Campbell,  C.  J.  He  took  the  gas  from  the  company  against 
their  will  instead  of  receiving  it  properly  and  accounting  for  it. 

Ballantine.  The  Gas  Works  Clauses  Act,  10  Vict.  c.  15,  §  18,  pro- 
vides a  specific  penalty  for  this  very  offence,  which  would  hardly  have 
been  done  if  it  had  been  regarded  as  a  larceny. 

Maule,  J.  That  clause  may  be  intended  to  provide  against  frauds 
of  a  ditferent  kind,  such  as  damaging  the  machiner}'  or  altering  the  in- 
dex of  the  meter,  which  would  not  be  larceny. 

Lord  Campbell,  C.  J.     Is  not  this  a  taking  invito  domino 'i 

Ballantine.  The  delivery  of  the  gas  is  voluntary  and  the  possession 
was  not  obtained  hs  fraud. 

Maule,  J.  The  taking  was  by  turning  the  gas  into  a  new  channel 
without  the  leave  of  the  companj'  and  that  was  done  with  intent  to 
defraud. 

Ballantine.     There  was  no  trespass. 

Maule,  J.  If  this  gas  when  taken  was  in  the  lawful  possession  of 
the  prisoner  and  he  was  onl}'  guilty  of  a  breach  of  contract  in  not 
accounting,  you  must  say  the  same  of  the  surreptitious  introduction  of 
new  burners. 

Ballantine.  An  evasion  of  the  meter  and  an  interference  with  it 
stand  on  the  same  ground.  The  meter  is  onl}'  the  voucher  of  an  ac- 
count, and  if  there  is  a  deliver}'  according  to  contract  on  the  one  hand 
and  onl}-  a  fraudulent  dealing  with  a  voucher  on  the  other,  there  is  no 
larceny. 

Lord  Campbell,  C.  J.  I  think  that  the  conviction  ought  to  be 
affirmed  and  that  the  direction  of  the  learned  recorder  was  most  accu- 
rate. Gas  is  not  less  a  subject  of  larcen}'  than  wine  or  oil ;  but  is  there 
here  a  felonious  asportation  ?  No  one  who  looks  at  the  facts  can  doubt 
it.  The  gas  no  doubt  is  supplied  to  a  vessel  which  is  the  property'  of 
the  prisoner,  but  the  gas  was  still  in  the  possession  of  the  company. 
Then,  being  in  the  possession  of  the  company  and  their  property,  it  is 
taken  away  animo  furandi  by  the  prisoner.  If  the  propert}'  remains 
in  the  company  until  it  has  passed  the  meter,  —  which  is  found,  —  to 
take  it  before  it  has  passed  the  meter  constitutes  an  asportation.  If 
the  asportation  was  with  a  fraudulent  intent  —  and  this  the  jury  also 


SECT.  II.]  COMMONWEALTH   V.    BARRY.  507 

have  found  —  it  was  larceny.  As  to  the  Act  of  PaiHament  the  legis- 
lature has  for  convenience  sake  added  a  specific  penalty,  but  that  can- 
not reduce  the  offence  to  a  lower  degree.  My  brother  Maule  has, 
however,  given  a  probable  explanation  of  that  provision. 

Parke,  B.,  Maule,  J.,  Talfoukd,  J.,  and  Martin,  B.,  concurred. 

Conviction  affirmed. 


COMMONWEALTH    v.    BARRY. 
Supreme  Judicial  Court  of  Massachusetts.     1878. 

{Reported  125  Massachusetts,  ^^0.] 

Indictment  for  larcen}-  of  a  trunk  and  its  contents. 

At  the  trial  in  the  Superior  Court,  before  Dewe}',  J.,  it  was  proved 
that  one  Kerr,  a  travelling  salesman  from  New  York,  had  caused  the 
trunk  in  question  to  be  checked  at  the  Union  Station  in  ^Yorcester,  for 
Hartford,  Connecticut,  at  about  half-past  four  in  the  afternoon  of  Ma}'' 
11,  and  had  himself  taken  a  train  leaving  at  that  time;  but,  as  there 
was  not  time  to  load  the  trunk,  it  was  retained  in  the  baggage  room  at 
Worcester  until  the  departure  of  the  express  train  leaving  Worcester 
for  Hartford  at  half-past  ten  at  night,  when  it  was  put  upon  the  cars, 
and  arrived  at  New  York  early  on  the  morning  of  May  12,  with  a  New 
York  check  upon  it ;  that  one  Briggs  arrived  in  New  York  on  the 
same  train,  and  with  a  check  corresponding  with  the  check  on  the 
trunk,  obtained  the  trunk  and  took  it  to  a  hotel ;  that  the  trunk  was 
subsequently  sent  by  him  to  Baltimore,  where  it  was  afterwards  found 
by  its  owner,  rifled  of  its  contents  ;  and  that  Briggs  was  convicted  in 
New  York  of  the  larceny  of  the  trunk  and  its  contents,  and  was 
sentenced  to  the  state  prison. 

There  was  also  evidence  tending  to  show  that  Briggs,  in  company 
with  the  defendant,  was  at  the  Union  Station  in  Worcester  on  the 
afternoon  and  evening  of  May  H  ;  that  Briggs  caused  a  valise  to  be 
checked  for  New  York,  which  was  placed  by  the  baggage  master  on 
the  trunk  in  question  ;  that  the  defendant,  according  to  a  preconcerted 
plan  between  him  and  Briggs,  got  over  the  counter  at  the  window  of 
the  baggage  room  where  baggage  is  checked,  without  permission,  and 
asked  the  baggage  master  to  permit  him  to  place  a  package  in  the 
valise,  showing  a  check  for  the  same  ;  that  he  was  permitted  to  do 
this,  and,  while  he  was  at  the  valise  and  trunk,  Briggs  called  the 
attention  of  the  baggage  master  to  the  window  by  a  question,  and  the 
defendant  changed  the  checks  on  the  valise  and  trunk,  and  at  once 
left  the  baggage  room  through  a  regular  exit.  This  was  all  the  evi- 
dence as  to  what  the  defendant  did  to  the  trunk  at  the  station. 

The  defendant  requested  the  judge  to  give  the  following  instructions  : 
"  1.  On  the  whole  evidence,  the  jury  would  not  be  warranted  in  fiading 


508  COMMONWEALTH    V.    BARRY.  [CHAP.  VIII. 

the  defendant  guilty.  2.  If  the  jury  find  that  all  that  the  defendant 
did  was,  according  to  a  preconcerted  plan  with  some  person,  to  change 
the  checks  on  the  trunk  and  valise,  and  that  the  asportation  of  the 
trunk  and  its  contents  was  done  b}^  some  other  pez'son,  they  cannot 
convict  of  larceny.  3.  There  is  no  evidence  in  the  case  to  warrant  the 
jury  in  finding  that  the  defendant  did  anything  more  tlian  to  change  tiie 
checks  on  the  trunk  and  valise,  having  previously  arranged  with  some 
other  person  so  to  do.  4.  If  the  jury  find  that  the  defendant  arranged 
with  Briggs  tliat  the  former  should  change  the  checks  on  the  trunk  and 
valise,  and  he  did  so  change  the  checks,  and  if,  in  pursuance  of  the 
plan,  Briggs  accompanied  the  trunk  on  the  same  train  to  New  York 
and  there  received  the  trunk  from  the  railroad  company  and  rifled  it  of 
its  contents,  and  there  is  no  evidence  which  satisfies  the  jury  that  the 
defendant  was  present  with  Briggs  in  New  York,  and  with  him  re- 
ceived the  trunk,  the}^  cannot  convict." 

The  judge  refused  to  give  these  instructions  ;  but  instructed  the  jury 
that  it  was  necessary  and  was  sufficient,  in  order  to  convict  the  de- 
fendant, that  they  should  be  satisfied  beyond  a  reasonable  doubt 
"  that  the  defendant,  at  the  railroad  station  in  Worcester,  fraudulently 
and  feloniously  took  the  trunk  into  his  temporary  possession  and  con- 
trol, and  while  so  having  it  fraudulently,  with  the  intent  to  continue  to 
have  said  trunk  under  his  control,  and  appropriate  it  to  his  own  use  or 
the  use  of  himself  and  confederate,  fraudulently  and  feloniously  took 
off  the  Hartford  check  from  the  same,  which  the  railroad  company  had 
placed  on  it,  the  owner  having  a  corresponding  check,  and  placed 
thereon  a  check  of  the  company  for  New  York,  whereof  he  held 
a  corresponding  check  which  would  entitle  him  to  have  the  trunk 
transported  to  New  York,  and  to  receive  the  trunk  in  New  York  of 
the  company  on  its  arrival  there,  and  the  trunk  was  carried  to  New 
York  as  the  trunk  of  the  defendant,  or  of  which  he  was  entitled  to 
the  possession  and  control,  and,  by  reason  of  the  changed  check  there- 
on, the  trunk  with  its  contents  were,  on  its  arrival  at  New  York, 
delivered  to  the  defendant  or  to  some  person  for  him." 

The  jury  returned  a  verdict  of  guilty  ;  and  the  defendant  alleged 
exceptions. 

W.  S.  B.  Hopkins,  for  the  defendant. 

C.  R.  Train,  Attorne}*  General,  for  the  Commonwealth. 

Lord,  J.  We  do  not  understand  that  the  presiding  justice  intended, 
by  the  language  used,  to  instruct  the  jur}'  that  the  temporary'  pos- 
session referred  to  in  the  instructions  was,  in  itself,  an  asportation. 
It  does  not  appear  that  the  question  whether  there  was  an  asportation  at 
or  before  the  changing  of  the  checks  was  raised  at  the  trial,  or  that  the 
attention  of  tlie  court  was  called  to  that  subject.  An  asportation  at 
that  precise  time  was  unimportant.  The  real  question  was,  whether 
the  defendant  then,  feloniously  and  with  intent  to  steal,  set  in  motion 
an  innocent  agenc}',  by  which  the  trunk  and  contents  were  to  be 
removed  from  the    possession  of  the  true   owner,  and   put   into   the 


SECT  II.j  COMMONWEALTH   V.   BAKRY.  509 

defendant's  possession,  and  b}-  means  of  such  agency  effected  the 
purpose ;  and  the  teniporaiy  possession  and  control,  to  which  the 
court  referred,  must  be  understood  to  mean  sucli  possession  and  con- 
trol as  enabled  the  defendant  to  execute  the  device  by  which,  through 
such  innocent  instrumentality,  he  should  become  possessed  of  the 
property. 

There  was  evidence  tending  to  show  that  the  defendant  and  Briggs 
were  acting  in  pursuance  of  a  common  purpose,  and  that  the  acts  of 
each  were  the  acts  of  both  ;  and,  inasmuch  as  no  question  was  raised 
upon  this  subject,  it  is  taken  to  be  true  that  what  one  did  was  the  act 
of  both,  and  that  the  subsequent  actual  possession  of  the  trunk  by 
Briggs  was  the  possession  of  the  defendant.  It  will  be  seen,  therefore, 
that,  by  the  instructions  of  the  presiding  judge,  the  jury  were  author- 
ized to  find  the  defendant  guilty  of  larcenj-,  if,  in  the  mode  stated,  he 
or  his  confederate  in  action  obtained  possession  of  the  trunk  and  its 
contents. 

This,  as  we  understand,  has  been  the  law  from  the  earliest  period : 
"  There  is  no  occasion  that  the  carrying  away  be  bj'  the  hand  of  the 
party  accused,  for  if  he  procured  an  innocent  agent  to  take  the 
property,"  by  means  of  which  he  became  possessed  of  it,  "•  he  will 
himself  be  a  principal  offender."  3  Chit,  Crim.  Law,  925.  It  is  held 
to  be  a  larceny  "if  a  person,  intending  to  steal  m}'  horse,  take  out  a 
replevin,  and  thereb}-  have  the  horse  delivered  to  him  b}-  the  sheriff ; 
or  if  one  intending  to  rifle  my  goods  get  possession  from  the  sheriff, 
b}'  virtue  of  a  judgment  obtained  without  any  the  least  color  or  title, 
upon  false  affidavits,  &c. ;  in  which  cases,  the  making  use  of  legal  pro- 
cess is  so  far  from  extenuating  that  it  highly  aggravates  the  offence, 
by  the  abuse  put  on  the  law  in  making  it  serve  the  purposes  of  op- 
pression and  injustice."  1  Hawk.  c.  33,  §  12.  1  Hale  P.  C.  507. 
Chissers'  case,  T.  Raym.  275.  Wilkins'  case,  cited  in  1  Hawk,  c,  33, 
§  22  ;  s.  c.  1  Leach  (4th  ed.)  520.  It  will  thus  be  seen  that  an  aspor- 
tation ma}'  be  effected  b}'  means  of  innocent  human  agency,  as  well  as 
by  mechanical  agenc}',  or  by  the  offender's  own  hand. 

The  case  has  been  argued  as  if  it  was  intended  by  the  presiding 
justice  to  rule  that  the  jury  must  find  that,  at  the  instant  of  the 
exchange  of  the  checks,  there  was  such  an  actual  manual  change  in  the 
possession  as  of  itself  to  be  an  asportation.  We  do  not  so  understand 
the  instruction.  An  asportation  at  that  time  was  unimportant.  The 
real  question  was,  whether  the  defendant  at  that  time  feloniously  and 
with  intent  to  steal,  set  in  motion  an  innocent  agencj',  b}'  which  the 
trunk  and  contents  were  to  he  removed  from  the  possession  of  the 
true  owner,  and  put  into  the  defendant's  possession,  and  whether  such 
purpose  was  actually  accomplished.  If,  before  the  trunk  had  been 
started,  the  scheme  had  been  detected,  the  offence  of  the  defendant 
would  have  been  an  attempt  to  commit  larceny,  and  doing  an  act 
towards  the  commission  of  it,  but  failing  in  the  perpetration  ;  but,  as 
soon  as  the  asportation  was  complete,  for  however  short  a  distance. 


510  EDMONDS   V.    STATE.  [cHAP.  VIII. 

the  offence  of  larcenj'  was  committed,  such  asportation  having  been 
caused  by  him,  by  fraudulent  means,  and  through  an  innocent  agent, 
unconscious  of  what,  in  fact,  he  was  doing.  As  soon  as  the  trunk  was 
placed  on  board  the  cars,  checked,  with  the  corresponding  check  in  the 
possession  of  the  defendant  or  his  confederate,  the  trunk  and  its 
contents  were  in  the  possession  and  control  of  the  defendant  or  his  con- 
federate, and  it  is  immaterial  of  which.  Nor  is  the  time  when  the 
actual  manual  possession  came  into  the  hands  of  the  parties  important, 
they  having  all  the  time  the  constructive  possession  and  the  real  con- 
trol of  it. 

The  instructions  praj'cd  for  b}'  the  defendant's  counsel  were  properly 
refused,  because  they  wholly  omitted  all  reference  to  the  purpose  and 
intent  of  the  defendant  in  what  he  did,  and  all  reference  to  the  fact 
that  the  defendant  was  an  accomplice  of  Briggs,  or  that  the  actual  sub- 
sequent possession  by  Briggs  was,  or  might  be,  the  possession  of  the 
defendant.  The  request  to  instruct  the  jury  that,  upon  the  whole  evi- 
dence, they  would  not  be  warranted  in  finding  the  defendant  guilty, 
was  also  properly  refused.  Exceptions  overruled. 


EDMONDS  V.  STATE. 
Supreme  Court  of  Alabama.     1881. 

[lieported  70  Alabama,  8.] 

SoMKRviLLB,  J.  The  indictment  in  this  case  charges  the  defendant 
with  the  larceny  of  a  hog,  which,  under  the  statute,  is  made  a  felon}', 
without  reference  to  the  value  of  the  animal  stolen.  Code,  1876,  §  4358. 
The  only  evidence  in  the  case,  showing  an}'  caption,  or  asportation  of  the 
animal,  was  the  testimony  of  an  accomplice,  one  Wadworth,  who  made 
the  following  statement :  "  That  shortly  after  dark,  on  the  18th  of  Febru- 
ary last,  witness  met  defendant  near  the  horse-lot,  on  the  plantation 
of  one  Ilges  ;  that  the  two  went  together  to  witness'  house,  where  the 
latter  procured  an  axe,  and  they  then  returned  to  the  lot.  Witness 
then  got  some  corn,  and  after  giving  defendant  the  axe,  by  dropping 
some  of  the  corn  on  the  ground  tolled  the  hog  to  the  distance  of  about 
twenty  yards  ;  that  the  defendant  then  struck  the  hog  with  the  axe, 
and  the  hog  squealed,  whereupon  immediately  both  witness  and  defen- 
dant ran  away,  leaving  the  hog  where  it  was."  Upon  this  state  of 
facts,  the  court  charged  the  jury  that  if  they  believed  the  evidence,  it 
was  sufficient  to  show  such  a  taking  and  carrying  away  of  the  property, 
if  done  feloniously,  as  was  necessai-y  to  make  out  the  offence  of  larceny. 

We  think  the  court  erred  in  giving  this  charge,  though  the  question 
presented  is  not  free  from  some  degree  of  doubt  and  difficulty.  The 
usual  definition  of  larceny  is,  "  the  felonious  taking  and  carr}ing  away 


SECT.  II.j  EDMONDS   V.    STATE.  511 

of  the  personal  goods  of  another."  4  Black.  Cora.  229.  It  is  defined 
in  Roscoe's  Criminal  Evidence,  as  "the  wrongful  taking  possession  of 
the  goods  of  another,  with  intent  to  deprive  tiie  owner  of  his  property  in 
them."  Rose.  Cr.  Ev.  622.  It  is  a  well  settled  rule,  liable  to  some  few  ex- 
ceptions, perhaps,  that  every  larceny  necessarily  involves  a  trespass,  and 
that  there  can  be  no  trespass,  unless  there  is  an  actual  or  constructive 
taking  of  possession  ;  and  this  possession  must  be  entire  and  absolute. 
Roscoe's  Cr.  Ev.  623-24  ;  3  Greenl.  Ev.  §  154.  There  must  not  only 
be  such  a  caption  as  to  constitute  possession  of,  or  dominion  over  the 
property,  for  an  appreciable  moment  of  time,  but  also  an  asportation, 
or  carrying  away,  which  may  be  accomplished  by  any  removal  of  the 
property  or  goods  from  their  original  status,  such  as  would  constitute 
a  complete  severance  from  the  possession  of  the  owner.  1  Greenl.  Ev. 
§  154;  Roscoe's  Cr.  Ev.  p.  625.  It  has  been  frequently  held  that  to 
chase  and  shoot  an  animal,  witli  felonious  intent,  without  removing  it 
after  being  shot,  would  not  be  such  a  caption  and  asportation  as  to  con- 
summate the  offence  of  larceny.  Wolf  v.  The  State,  41  Ala.  412  ;  The 
State  V.  Seagler,  1  Rich.  (S.  C.)  30;  2  Bish.  Cr.  Law,  §  797.  So  it 
has  been  decided  that  the  mere  upsetting  of  a  barrel  of  turpentine, 
though  done  with  felonious  intent,  does  not  complete  the  offence,  for 
the  same  reason.  The  State  v.  Jones,  65  N.  C.  395.  The  books  are 
full  of  cases  presenting  similar  illustrations. 

On  the  contrary,  it  is  equally  well  settled  that  where  a  person  takes 
an  animal  into  an  inclosure,  with  intent  to  steal  it,  and  is  apprehended 
before  he  can  get  it  out,  he  is  guilty  of  larceny.  3  Inst.  109.  In  Wis- 
dom's case,  8  Port.  507,  519,  it  was  said,  arguendo,  by  Mr.  Justice 
Goldthwaite,  "  If  one  entice  a  horse,  hog,  or  other  animal,  by  placing 
food  in  such  a  situation  as  to  operate  on  the  volition  of  the  animal, 
and  he  assumes  the  dominion  over  it,  and  has  it  once  under  his  control, 
the  deed  is  complete  ;  but,  if  we  suppose  him  detected  before  he  has 
the  animal  under  his  control,  yet  after  he  has  operated  on  its  volition, 
the  offence  would  not  be  consummated."  This  principle  is,  no  doubt, 
a  correct  one  ;  but  the  true  difficulty  lies  in  its  proper  application.  It 
is  clear,  for  example,  if  one  should  thus  entice  an  animal  from  the 
possession,  actual  or  constructive,  of  the  owner,  and  toll  it  into  his 
own  inclosure,  closing  a  gate  behind  him,  the  custody  or  dominion 
acquired  over  the  animal  might  be  regarded  as  so  complete  as  to  consti- 
tute larceny.  2  Bish.  Cr.  Law,  §  806.  It  is  equally  manifest  that,  if 
one  should,  in  like  manner,  entice  an  animal,  even  for  a  considerable 
distance,  and  it  should,  from  indocility,  or  other  reason,  follow  him  so 
far  off  as  not  to  come  virtually  into  his  custody,  the  crime  would  be 
incomplete. 

The  controlling  principle,  in  such  cases,  would  seem  to  be  that  the 
possession  of  the  owner  must  be  so  far  changed  as  that  the  dominion 
of  the  trespasser  shall  be  complete.  His  proximity  to  the  intended 
booty  must  be  such  as  to  enable  him  to  assert  this  dominion,  by  taking 
actual    control    or    custody    by    manucaption,    if  he    so    wills.       If   he 


512  THOMPSON    V.    STATE.  [CHAP.  VIII. 

abandon  the  enterprise,  however,  before  being  placed  in  this  attitude, 
he  is  not  guilt}'  of  the  offence  of  larcen}',  though  he  may  be  convicted 
of  an  attempt  to  commit  it.  Wolfs  case,  41  Ala.  412.  It  would  seem 
there  can  be  no  asportation,  within  the  legal  acceptation  of  the  word, 
without  a  previously  acquired  dominion. 

The  facts  of  this  case,  taken  alone,  do  not  constitute  larceny.  It  is 
not  a  reasonable  inference  from  them  that  there  was  such  a  complete 
caption  and  asportation  as  to  consummate  the  offence.^ 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded. 


THOMPSON  V.  STATE. 
Supreme  Court  of  Alabama. 

[Reported  94  Alabama,  535.] 

Walker,  J.  The  witness  for  the  State  testified  that  he  held  out  his 
open  hand  with  two  silver  dollars  therein,  showing  the  money  to  the 
defendant ;  that  the  defendant  struck  witness'  hand,  and  the  mone}'  was 
either  knocked  out  of  his  hand  or  was  taken  by  the  defendant,  he  could 
not  tell  positively  which.  It  was  after  twelve  o'clock  at  night,  and  the 
witness  did  not  see  the  money,  either  in  defendant's  possession  or  on 
the  ground.  The  court  charged  the  jury  :  "If  the  jury  find  from  the 
evidence  that  the  defendant,  with  a  felonious  intent,  grabbed  for  the 
money,  but  did  not  get  it,  but  only  knocked  it  from  the  owner's  hand 
with  a  felonious  intent,  this  would  be  a  suflScient  carrying  awa^^  of  the 
money,  although  defendant  never  got  possession  at  any  time  of  said 
money."  This  charge  was  erroneous.  To  constitute  larceny,  there 
must  be  a  felonious  taking  and  carrying  away  of  personal  property. 
There  must  be  such  a  caption  that  the  accused  acquires  dominion  over 
the  property,  followed  bj'  such  an  asportation  or  carrying  awa}'  as  to 
supersede  the  possession  of  the  owner  for  an  appreciable  period  of 
time.  Though  the  owner's  possession  is  disturbed,  yet  the  offence  is 
not  complete  if  the  accused  fails  to  acquire  such  dominion  over  the 
property-  as  to  enable  him  to  take  actual  custody  or  control.  Frazier 
V.  The  State,  85  Ala.  17  ;  Groom  v.  The  State,  71  Ala.  14  ;  Edmunds 
V.  The  State,  70  Ala.  8;  Wolf  v.  The  State,  41  Ala.  412.  It  is  not 
enough  that  the  money  was  knocked  out  of  the  owner's  hand,  if  it  fell 
to  the  ground  and  the  defendant  never  got  possession  of  it.  The  defen- 
dant was  not  guilt}'  of  larcen}'  if  he  did  not  get  the  money  under  his 
control.  If  the  attempt  merely  caused  the  money  to  fall  from  the 
owner's  hand  to  the  ground,  and  the  defendant  ran  off  without  getting 

1  Ace.  Hardeman  v.  State,  12  Tex.  App.  207.  See  Croom  v.  State,  71  Ala  14; 
Lnndy  i-.  State,  60  Ga.  143  ;  State  v.  Alexander,  74  N.  C.  232  —  Ed. 


SECT.  II.]  people:   v.   MEYER.  513 

it,  the  larceny  was  not  consummated,  as  the  dominion  of  the  trespassei 
was  not  complete.  Charge  No.  1  was  a  proper  statement  of  the  law  as 
applicable  to  the  evidence  above  referred  to,  and  it  should  have  been 
given.-'  Meversed  and  rema7ided. 


PEOPLE   y.    MEYER. 

Supreme  Court  of  California. 

[Reported  lb  Cal.  383.] 

Sharpstein,  J.^  —  The  defendant  was  tried  on  an  information,  in 
which  it  was  charged  that  he  wilfully,  unlawfully,  and  feloniously  stole, 
took,  and  carried  away  one  overcoat,  of  the  value  of  twenty  dollars, 
the  personal  property  of  Harris  Joseph  and  Lewis  Joseph.  On  the 
trial  Lewis  Josepli  testified  as  follows  :  — 

"I  had,  as  usual,  placed  and  buttoned  an  overcoat  upon  a  dummy 
which  stood  on  the  sidewalk  outsitle  of  my  store.  I  was  inside  the 
store  and  heard  the  chain  of  the  dummy  rattle,  and  on  coming  outside, 
found  defendant  with  said  coat  unbuttoned  from  the  dummy  and  under 
his  arm,  the  same  being  entirely  removed  from  the  dummy,  and  about 
two  feet  therefrom  and  from  tiie  i)lace  where  it  had  been  originally 
placed  on  the  dummy  by  me,  and  the  accused  was  in  the  act  of  walking 
off  with  said  coat  when  grabbed  by  me,  he  being  prevented  from  taking 
it  away  because  said  coat  was  chained  to  the  dummy  by  a  chain  which 
ran  through  the  coat-sleeve,  and  the  dummy  was  tied  to  the  building 
by  a  string." 

This  was  the  only  evidence  introduced  to  prove  the  charge  of  lar- 
ceny. The  jury  on  this  evidence  returned  a  verdict  of  guilty  of  petit 
larceny  as  charged,  and  the  defendant,  having  pleaded  guilty  of  prior 
convictions  of  other  petit  larcenies,  was  sentenced  to  imprisonment  in 
the  state  prison  for  the  term  of  two  years. 

He  moved  for  a  new  trial,  which  was  denied,  and  from  that  order 
and  the  judgment  this  appeal  is  taken. 

Appellant  insists  that  the  verdict  is  contrary  to  the  evidence,  which 
it  is  claimed  does  not  prove  that  the  defendant  carried  away  the  coat 
which  he  is  charged  with  having  stolen,  but  proves  he  did  not, 

"  Larceny,"  as  defined  in  the  Penal  Code  of  this  state,  "  is  the  felo- 
nious stealing,  taking,  carrying,  leading,  or  driving  away  the  personal 
property  of  another."  This  is  substantially  the  common-law  defini- 
tion, under  which  it  was  held  that  it  must  be  shown  that  the  goods 
were  severed  from  the  possession  or  custody  of  the  owner,  and  in  the 

1  Ace.  Rex  V.  Farrel,  2  East  P.  C.  557  ;  Com.  i'.  Luckis,  99  Mass.  431.— Ed. 
*  Part  of  the  case  discussing  a  question  of  evidence  is  omitted. —  Ed. 


514  PEOPLE   V.   MEYER.  [CHAP.  VIIL 

possession  of  the  thief,  though  it  be  but  for  a  moment.  Thus  where 
goods  were  tied  by  a  string,  the  other  end  of  which  was  fastened  to  the 
counter,  and  the  thief  took  the  goods  and  carried  them  towards  the 
door  as  far  as  the  string  would  permit,  and  was  then  stopped,  this  was 
held  not  to  be  a  severance  from  the  owner's  possession,  and  conse- 
quently no  felon}'.     (3  Greenl.  Ev.,  sec.  155.) 

"  In  the  language  of  the  old  definition  of  larceny,"  says  Bishop, 
"  the  goods  taken  must  be  carried  away.  But  they  need  not  be  re- 
tained in  the  possession  of  the  thief,  neither  need  they  be  removed 
from  the  owner's  premises.  The  doctrine  is,  that  any  removal,  how- 
ever slight,  of  the  entire  article,  which  is  not  attached  either  to  the  soil 
or  to  anything  not  removed,  is  sufficient ;  while  nothing  short  of  this 
will  do."     (2  Bishop's  Crim.  Law,  sec.  794.) 

The  attornej' -general  admits  that  this  is  the  doctrine  of  the  English 
cases. 

In  State  v.  Jones,  65  N.  C.  395,  the  court  says  :  "  There  must  be  an 
asportation  of  the  article  alleged  to  be  stolen  to  complete  the  crime  of 
larceny.  The  question  as  to  what  constitutes  a  sufficient  asportation 
has  given  rise  to  many  nice  distinctions  in  the  courts  of  England,  and 
the  rules  there  established  have  been  generallj'  observed  by  the  courts 
of  this  country." 

People  V.  Williams,  35  Cal.  671,  was  not  so  clearly  within  the  rule 
as  this  case  is,  but  the  court  said  that  it  did  not  feel  at  libert}-  to 
depart  from  a  rule  so  long  and  so  firmly  established  bj'  numerous  deci* 
sions.  Tested  by  that  rule,  the  evidence  in  this  case  was  clearly  in- 
sufficient to  justify  the  verdict,  and  the  defendant  is  entitled  to  a  new 
trial  on  that  ground.  Judgment  and  order  reversed.. 


SECT.  ILJ  state  V.   HUNT.  515 


STATE  V.  HUNT. 

Supreme  Court  of  Towa.    1877. 

[Reported  45  Ta.  673.] 

Defendant  was  indicted  and  convicted  of  tlie  crime  of  grand  larceny, 
and  sentenced  to  confinement  in  the  penitentiary  for  eighteen  months. 
His  case  is  brought  to  this  court  ou  appeal. 

Beck,  J.^  The  main  objection  to  the  conviction  of  defendant  is  based 
upon  the  ground  that  the  evidence  does  not  support  the  verdict  of  the 
iury.  The  property  which  defendant  was  charged  with  stealing  was  a 
steer.  It  was  impounded  by  the  marshal  of  Independence,  and  adver- 
tised for  sale,  under  a  city  ordinance.  At  the  day  of  sale,  defendant, 
who  was  employed  as  auctioneer  to  sell  the  animal  and  another  in  the 
pound,  claimed  the  steer  and  sold  it  to  a  butcher,  by  whom  it  was 
killed.  The  owner  of  the  steer,  after  it  was  butchered,  identified  it  by 
the  hide  and  certain  marks.  There  can  be  no  doubt  that  it  was  his 
property;  in  fact,  this  is  not  denied.  Defendant,  upon  the  owner 
making  claim  to  the  property,  paid  him  the  sum  he  had  received  from 
the  butcher.  It  is  insisted  that  the  evidence  fails  to  show  a  felonious 
intent  on  the  part  of  defendant,  but  establishes  the  fact  that  the  prop- 
erty was  sold  by  defendant  under  the  honest  claim  and  belief  that  it 
was  his  own.  It  is  true  that  the  defendant,  after  he  had  seen  the  steer 
in  the  pound,  did  state  that  it  was  his  property,  and  that  it  had  strayed 
from  his  possession.  But  accompanying  this  claim  was  an  inquiry  ad- 
dressed to  the  marshal  as  to  the  consequences  that  would  result  if  it 
proved  to  be  the  property  of  another.  He  was  informed  that  he  would 
be  required  to  pay  the  owner  the  value  of  the  animal.  .  .  . 

It  is  argued  that  there  was  no  evidence  of  the  taking  of  the  ani- 
mal—  that  if  it  be  conceded  the  property  was  not  defendant's  and 
was  not  sold  in  the  belief  of  his  ownership,  the  facts  show  simply  a 
sale  of  property  by  defendant  which  he  did  not  own,  and  not  a  larceny. 
But  defendant  asserted  his  ownership  and  claimed  the  possession  by 
the  sale.  And  further,  he  authorized  the  butcher  to  take  the  steer 
from  the  pound.  This  was  a  sufficient  "  taking,"  and  as  it  was  done 
under  defendant's  authority  it  must  be  regarded  as  his  act. 

Affirmed* 
^  Part  of  the  opinion  is  omitted.  —  Ed. 


516  ALDEICH    V,    PEOPLE.  [CHAP.  VIll. 

ALDRICH  V.  PEOPLE. 
Supreme  Court  of  Illinois.     1906. 

[Reported  224  ///.  622.] 

The  record  in  this  case  brings  up  for  review  the  judgment  of  convic- 
tion of  Ro}'  Aldrich  for  the  crime  of  larceny. 

The  facts  developed  on  the  trial  were,  in  substance,  as  follows :  In 
July,  1905,  Miss  Flora  Ma}-  Barr  checked  her  trunk  at  Grand  Haven, 
Michigan,  for  Chicago,  and  took  passage  on  one  of  the  steamships 
belonging  to  the  Goodrich  Transportation  Company.  She  left  Grand 
Haven  about  9.15  on  the  evening  of  July  10  and  arrived  at  Chicago 
about  six  o'clock  on  the  morning  of  the  11th.  At  Chicago  Miss  Barr 
gave  the  check  for  her  trunk  to  a  transfer  company,  with  instructions 
to  transfer  it  to  the  Burlington  depot  and  re-check  it  to  Oakland,  Cali- 
fornia, which  was  done.  Miss  Barr  saw  the  baggageman  attach  the 
check  to  her  trunk  at  Grand  Haven,  where  she  received  a  duplicate 
check,  but  she  did  not  see  the  trunk  again  before  leaving  Cliicago  for 
Oakland.  Upon  her  arrival  at  Oakland  she  gave  her  trunk  check  to 
a  transfer  company,  with  instructions  to  deliver  the  trunk  to  her  at 
the  place  where  she  intended  to  stop.  When  the  trunk  was  brought  to 
her  she  at  once  discovered  that  it  was  not  her  trunk.  She  refused  to 
receive  the  trunk,  although  it  had  a  check  attached  to  it  correspond- 
ing to  the  one  which  she  had  received  for  her  trunk  at  Chicago.  The 
trunk  which  was  sent  to  Oakland  was  a  zinc-covered  trunk  with  an 
oval  top,  while  Miss  Barr's  trunk  was  a  canvas-covered  trunk  and  of  a 
different  shape.  Miss  Barr's  trnnk  contained  between  8300  and  $400 
worth  of  wearing  apparel  and  other  articles  of  value  which  she  intended 
to  take  with  her  on  her  summer  trip  to  California,  while  the  trunk 
which  was  brought  to  her  at  Oakland  was  afterwards  found  to  contain 
nothing  except  waste  paper  and  rubbish.  She  immediately  notified 
the  Goodrich  Transportation  Company  of  the  loss  of  her  trunk  and 
shipped  the  empty  trunk  back  to  Chicago.  The  Goodrich  Transporta- 
tion Company  instituted  a  search  for  the  missing  trunk.  About  a  week 
or  ten  days  after  Miss  Barr  passed  through  Chicago  an  unknown  man 
appeared  at  the  baggage  room  of  tlie  Goodrich  Transportation  Com- 
pany in  Chicago  with  two  trunks,  bought  a  ticket,  and  checked  the 
trunks  to  Milwaukee.  The  servants  of  the  transportation  company,  in 
handUng  the  two  trunks,  discovered  that  they  were  apparently  empty, 
—  at  least  they  were  very  light.  It  was  also  noticed  that  both  of  those 
trunks  had  the  locks  broken  and  that  they  were  fastened  with  ropes  or 
straps.  When  the  boat  arrived  at  Milwaukee  plaintiff  in  error  pre- 
sented two  checks  and  demanded  the  two  trunks.  The  employees  in 
charge  of  the  boat,  suspecting  that  this  transaction  might  not  be  all 
right,  refused  to  deliver  the  trunks  to  Aldrich  in  Milwaukee,  but  agreed 
to  re-check  them  for  him  back  to  Chicago,  which  they  did.     The  trunks 


SECT.  II.]  ALDRICH   V.    PEOPLE.  517 

were  not  called  for  after  their  return  to  Chicago  for  several  days. 
Finally  plaintiff  in  eiTor  presented  checks  and  demanded  the  two  trunks. 
The  transportation  company  again  refused  to  deliver  the  trunks  to 
plaintiff  in  error.  PlaintilT  in  error  called  a  second  time  and  demanded 
the  trunks,  and  threatened  legal  proceedings  unless  they  were  delivered 
to  him.  In  the  meantime  one  of  the  trunks  had  been  positively  identi- 
fied as  Miss  Barr's  lost  trunk.  It  was  afterwards  learned  that  a  man 
by  the  name  of  Frank  Bushre  had  hauled  the  two  empty  trunks  from  a 
room  occupied  by  plaintiff  in  error  in  a  house  at  128  Dearborn  avenue, 
Chicago.  It  is  also  shown  that  plaintiff  in  error  and  a  woman  known 
as  Dais}'  Dean  occu[)ied  tlie  room  from  which  the  trunks  were  obtained 
b\'  Bushre.  Plaintiff  in  error  was  then  arrested  on  a  charge  of  larceny 
of  the  Barr  trunk  and  its  contents.  In  the  room  occupied  b}-  plaintiff 
in  error  and  the  woman  were  found  substantially  all  of  the  articles 
which  Miss  Barr  had  packed  in  her  trunk  in  Grand  Haven,  Michigan, 
and  these  articles  were  afterwards  identified  by  her  as  her  property. 
There  was  also  found  in  this  room  a  large  quantity  of  other  goods  of 
various  description,  among  other  things,  two  tickets  from  Grand  Haven 
to  Chicago  which  had  never  been  used. 

The  theory  of  the  pi'osecution  is,  that  plaintiff  in  eri'or,  somewhere 
between  Grand  Haven  and  Chicago,  transferred  the  check  from  the 
zinc-covered  trunk  to  Miss  Barr's  trunk  and  from  her  trunk  to  the  zinc- 
covered  trunk,  and  that  the  plaintiff  in  error  secured  possession  of  Miss 
Barr's  trunk  by  having  the  duplicate  of  the  check  that  was  originally 
attached  to  the  zinc-covered  trunk.  Plaintiff  in  error  denies  all  con- 
nection with  the  theft,  and  claims  that  he  bought  the  stolen  trunk, 
together  with  another  large  trunk,  from  a  man  by  the  name  of  Doc. 
Lebey.  His  explanation  as  to  how  he  obtained  possession  of  the  lost 
trunk  is  not  corroborated  by  any  testimony  in  the  record  or  b}-  facts 
and  circumstances. 

The  indictment  charged  the  plaintiff  in  error  with  feloniously  stealing 
one  trunk  and  various  articles  of  personal  property',  the  personal  goods 
and  property  of  the  Goodrich  Transportation  Compan}',  a  corporation 
of  the  State  of  Wisconsin.  The  jury  found  plaintiff  in  error  guilty  and 
found  the  value  of  the  property  stolen  to  be  $230.  Motions  for  a  new 
trial  and  in  arrest  of  judgment  were  made  and  severall}^  overruled,  and 
plaintiff  in  error  was  sentenced  to  an  indeterminate  term  of  imprison- 
ment in  the  penitentiary. 

ViCKERs,  J.^  .  .  .  The  Goodrich  Transportation  Company  held  the 
trunk  and  its  contents  merely  as  bailee  of  the  rightful  owner,  of  which 
plaintiff  in  error  must,  upon  the  theory  of  the  prosecution,  be  presumed 
to  have  had  notice,  and  therefore  such  transportation  company  had  no 
authority  to  consent  to  the  title  passing,  with  the  possession,  to  plain- 
tiff in  error.  But  even  if  it  could  be  held  that  the  corporation  could 
hare  given  such  consent  b}^  its  proper  officers,  it  certainly  cannot  be 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


518  ALDRICH    V.    PEOPLE.  [CHAP.  VIII. 

said  that  the  mere  act  of  its  servants  in  turning  over  the  trunk  to 
plaintiff  in  error  upon  the  mistaken  supposition  that  he  was  entitled  to 
the  possession  thereof,  would  amount  to  such  a  consent  as  is  necessary 
to  bring  the  case  within  the  rule  contended  for  by  plaintiff  in  error.  In 
McClain  on  Criminal  Law  (vol.  1,  sec.  558,)  it  is  said  :  "  The  fact  that 
the  servant  in  whose  possession  the  property  is,  consents  to  its  taking 
will  not  prevent  the  act  being  larcen}',  he  having  no  authorit}'  to  con- 
sent, and  the  wrongdoer  being  aware  of  that  fact."  (State  v.  Mc- 
Cartey,  17  Minn.  76  ;  People  v.  Griswold,  64  Mich.  722 ;  State  v. 
Edwards,  36  Mo.  394.)  It  seems  clear,  on  principle,  that  if  property 
is  obtained  from  an  infant  or  an  insane  person,  who  is  legall}-  disquali- 
fied from  giving  consent,  with  the  felonious  intent  to  steal  the  same, 
such  consent  could  not  be  availed  of  as  a  defence  to  a  charge  of  larceny. 
The  same  principle  ought  to  apph'  to  bailees,  whose  interest  in  the 
property  is  known  to  the  alleged  thief. 

In  our  opinion  the  case  at  bar  is  not  controlled  b}'  the  principle 
contended  for  by  the  plaintiff  in  error.  The  case  comes  within  the  rule 
laid  down  in  Commonwealth  v.  Barr}',  125  Mass.  390. 

It  will  thus  be  seen  that  an  asportation  may  be  effected  by  means  of 
innocent  human  agency  as  well  as  mechanical  agency,  or  b}'  the 
offender's  own  hands.  One  may  effect  an  asportation  of  personal  prop- 
erty- so  as  to  be  guilty  of  larceny  by  attaching  a  gas-pipe  to  the  pipes 
of  the  company'  and  thus  draw  the  gas  into  his  house  and  consuming  it 
without  its  passing  through  the  meter.  (Clark  and  Marshall  on  Law  of 
Crimes,  p.  446,  and  cases  cited  in  note  ;  Woods  v.  People,  222  III.  293.) 
From  these  cases  the  law  appears  to  be  well  settled  that  where,  with  the 
intent  to  steal,  the  wrongdoer  emplo\'s  or  sets  in  motion  any  agency, 
either  animate  or  inanimate,  with  the  design  of  effecting  a  transfer  of 
the  possession  of  the  goods  of  another  to  him  in  order  that  he  may 
feloniousl}-  convert  and  steal  them,  the  larceny  will  be  complete,  if  in 
pursuance  of  such  agency  the  goods  come  into  the  hands  of  the  thief 
and  he  feloniously  converts  them  to  his  own  use,  and  in  such  case  a 
conviction  maj'  be  had  upon  a  common-law  indictment  charging  a  felo- 
nious taking  and  carrying  awa}-  of  such  goods.  If  in  the  case  at  bar 
the  accused  shifted  the  checks  on  the  trunks,  by  means  of  which  the 
servants  of  the  transportation  company  were  innocently  led  to  further 
the  criminal  purpose  b}'  delivering  the  trunk  in  question  to  the  accused, 
who  received  and  couA^erted  the  same  to  his  own  use,  and  if  there  was 
in  the  mind  of  the  plaintiff  in  error  a  felonious  intent  to  steal  this 
propert}'  pervading  the  entire  scheme  and  attending  ever}'  step  of  it, 
then  he  is  guilty  of  larceny,  and  the  instruction  under  consideration  as 
applied  to  such  a  state  of  facts  is  a  correct  statement  of  the  law  and 
there  was  no  error  in  giving  it  to  the  jury. 

Judgment  affirmed. 


A 


SECT.  II.]  ANONYMOUS.  519 


SECTION   II.   {continued). 
(6)  Distinction  between  Possession  and  Custody. 

Littleton,  Tenures,  Sect.  71.  If  I  lend  to  one  my  sheep  to  tathe  his 
land,  or  my  oxen  to  plow  the  land,  and  he  killeth  my  cattle,  I  may  well 
have  an  action  of  trespass  against  him,  notwithstanding  the  lending. 

Coke,  First  Institute,  ad  loc.  And  the  reason  is,  that  when  the 
bailee,  having  but  a  bare  use  of  them,  taketh  upon  him  as  an  owner  to 
kill  them,  he  loseth  the  benefit  of  the  use  of  them.  Or  in  these  cases 
he  may  have  an  action  of  trespass  sur  le  case  for  this  conversion,  at 
his  election. 


ANONYMOUS. 

Assizes.     1353. 

[^Reported  Liber  Assisurum,  137,  pi.  39.] 

One  a.  was  arraigned  with  the  mainor,  sc.  a  coverlet  and  two  sheets  ; 
and  he  put  himself  on  his  clergy.  And  it  was  found  by  the  inquest  that 
he  was  a  guest  at  the  house  of  a  man  of  note,  and  was  lodged  within 
these  bedclothes  ;  and  it  was  found  that  he  got  up  before  da}',  and  took 
these  bedclothes  out  of  the  chamber,  and  carried  them  into  the  hall, 
and  went  off  to  the  stable  to  find  his  horse  ;  and  his  host  summoned 
his  household  against  him.  And  it  was  asked  of  the  inquest  whether 
he  carried  the  bedclothes  into  the  hall  with  intent  to  have  stolen  them  ; 
and  the}'  said  yes.  Wherefore  he  was  adjudged  a  felon,  and  was 
delivered  to  the  ordinary,  because  he  was  a  clerk,  etc.^ 

1  After  reporting  this  case,  Staunforde  (Pleas  of  the  Crown,  26)  adds  :  "  And  yet 
the  thing  stolen  seems  never  to  have  been  out  of  the  owner's  possession,  for  it  had  not 
passed  out  of  the  house  ;  so  qucEre  vvhat  the  law  would  be  in  such  a  case  at  this  day. 
For  no  wonder  it  was  allowed  for  law  at  tliis  time,  sc,  regnante  Edwardo  tertio,  yiiia 
tunc  temporis  voluntas  reputabatur  pro  facto,  ^-c."  See  ace.  State  v.  "Wilson,  Coxe  (N.  J.) 
439.  — Ed. 


520  KEX    V.    CHISSERS.  [CHAP.  VIII. 

ANONYMOUS. 
Old  Bailey.     1664. 

[Reported  Kelyng,  35.] 

A  SILK  throster  had  men  come  to  work  in  his  own  house,  and  deliv- 
ered silk  to  one  of  them  to  work,  and  the  workmen  stole  away  part  of 
it.  It  was  agreed  by  Hyde,  Chief  Justice,  mj'self  and  Brother  Wylde 
being  there,  that  this  was  felon}',  notwithstanding  the  delivery  of  it  to 
the  part}',  for  it  was  delivered  to  him  only  to  work,  and  so  the  entire 
property  remained  only  in  the  owner,  like  the  case  of  a  butler  who  hath 
plate  delivered  to  him  ;  or  a  shepherd,  who  hath  sheep  delivered,  and 
they  steal  any  of  them,  that  is  felony  at  the  common  law.  Vid.  13 
Eliz.  4,  10 ;  3  H.  VII.,  12  ;  21  H.  VII.,  14  ;  Accord  Poulton  de  Pace. 
126.1 


REX  V.   CHISSERS. 

Exchequer.     1678. 

[Reported  T.  Raymond,  275.] 

Upon  a  special  verdict  the  jury  find  that,  on  the  day  and  at  the  place 
in  the  indictment  mentioned,  Abraham  Chissers  came  to  the  shop  of 
Anne  Charteris,  spinster,  in  the  said  indictment  likewise  named,  and 
asked  for  to  see  two  cravats  in  the  indictment  mentioned,  which  she 
shewed  to  him,  and  delivered  them  into  his  hands,  and  thereupon  he 
asked  the  price  of  them,  to  which  she  answered  7s.  ;  whereupon  the 
said  Abraham  Chissers  offered  her  3s.,  and  immediately  run  out  of  the 
said  shop,  and  took  away  the  said  goods  openly  in  her  sight ;  but 
whether  this  be  felony  or  not  is  the  question.  And  if  it  shall  be  ad- 
judged felony,  we  find  him  guilty,  and  that  the  goods  were  of  the  value 
of  7s.,  and  that  he  had  no  goods  or  chattels,  etc. ;  but  if  it  be  not 
adjudged  felony,  we  find  him  not  guilty,  nor  that  he  fled  for  the  same. 

And  I  am  [of]  opinion  that  this  act  of  Chissers  is  felony  ;  for  that, 
1.  he  shall  be  said  to  have  taken  these  goods,  felleo  animo  /  for  the  act 
subsequent,  namely,  his  running  away  with  them,  explains  his  intent 
precedent ;  as  the  suing  a  replevin  to  get  the  horse  of  another  man,  to 
which  he  hath  no  title,  is  felony,  because  in  fraxidem  legis,  Co.  3  Inst. 
108.  So  if  an  officer  cometh  to  a  man,  and  telleth  him  that  he  is  out- 
lawed, when  the  officer  knoweth  the  contrary  to  be  true,  and  by  color 
thereof,  takes  his  goods,  it  is  felony :  Dalton's  Office  of  Sheriffs,  cap. 

1  See  ace.  U.  S.  v.  Clew,  4  Wash.  C.  C.  700 ;  Marcus  v.  State,  26  Ind.  101  ;  Gill  v. 
Bright,  6  T.  B.  Mon.  130;  State  v.  Jarvis,  63  N.  C.  556;  State  r.  Self,  1  Bay, 
242.  —Ed. 


SECT.  II.]  KEGINA   V.    SLOWLY.  521 

121,  fol.  489.  And  the  case  of  one  Far,  in  which  I  myself  was  a  coun- 
sel, was  thus  :  Far,  knowing  one  Mrs.  Steneer,  living  in  St.  Martin's 
Lane,  in  Middlesex,  to  have  considerable  quantit}'  of  goods  in  her 
house,  procured  an  aflidavit  to  be  filed  in  the  Common  Pleas  of  the  due 
delivery  of  a  declaration,  in  an  action  of  ejectione  Jirmce,  in  which  he 
was  lessor,  though  he  had  no  title,  and  thereupon  got  judgment,  and 
took  out  an  habere  facias  possessionem  for  the  house,  directed  to  the 
sheriff  of  Middlesex,  and  procured  him  to  make  a  warrant  to  a  bailiff 
to  execute  the  writ,  who  with  Far  came  to  the  house,  turned  Mis. 
Steneer  out  of  possession  thereof,  and  seized  upon  the  goods,  of  a  great 
value,  and  converted  them  to  his  own  use,  and  upon  complaint  made  by 
Mrs.  Steneer  to  Sir  Robert  Hyde,  then  Lord  Chief  Justice  of  B.  R.,  Far 
was  apprehended  by  his  warrant,  and  indicted  at  Justice  Hall  in  the 
Old  Bailey,  and  found  guilt}',  and  hanged  ;  for  that  he  used  the  color  of 
an  action  of  ejectment  and  the  process  thereupon  to  execute  his  feloni- 
ous intent,  infraudeinlegis. 

2.  Although  these  goods  were  delivered  to  Chissers  b}'  the  owner,  yet 
the}'  were  not  out  of  her  possession  by  such  delivery,  till  the  property 
should  be  altered  by  the  perfection  of  the  contract,  which  was  but  in- 
choated and  never  perfected  between  the  parties  ;  and  when  Chissers 
run  away  with  the  goods,  it  was  as  if  he  had  taken  them  up,  lying  in 
the  shop,  and  run  away  with  them.     Vide  Hill.  21  H.  VII.  14  pi.  21.^ 


REGINA   V.   SLOWLY. 
Crown  Case  Reserved.     1873. 

[Reported  12  Cox  C.  C.  269.] 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Justice  Byles. 

The  prisoners,  at  the  last  Winter  Assizes  for  the  county  of  Sussex 
at  Lewes,  were  jointl}'  indicted  for  stealing  onions. 

The  prosecutor,  having  a  cart  loaded  with  onions,  met  the  prisoners, 
who  agreed  to  buy  all  the  onions  at  a  certain  price,  namel}',  £3  16s.  fo) 
ready  money,  the  prisoners  saying,  "You  shall  have  3'our  monev 
directly  the  onions  are  unloaded." 

The  onions  were  accordingly  unloaded  b}'  the  prosecutor  and  the 
prisoners  together,  at  a  place  indicated  b}-  the  prisoners. 

The  prosecutor  then  asked  for  his  mone}-.  The  prisoners  thereupon 
asked  for  a  bill,  and  the  prosecutor  made  out  a  bill  accordingl}'.  One 
of  the  prisoners  said  they  must  have  a  receipt  from  the  prosecutor,  and 
in  the  presence  of  the  other  made  a  cross  upon  the  bill,  put  a  one  penny 
postage  stamp  on  it,  and  then  said  the}'  had  a  receipt,  and  refused  to 
restore  the  onions  or  pay  the  price. 

'  See  Bassett  v.  Spofford,  45  N.  Y.  387.  —  Ed. 


522  EEGINA    V.    SLOWLY.  [CHAP.  VIII. 

The  next  morning  the  prisoners  offered  the  onions  for  sale  at 
Hastings. 

The  jury  convicted  both  tlie  prisoners  of  larceny,  and  said  they 
found  that  the  prisoners  never  intended  to  pay  for  the  onions,  and  that 
the  fraud  was  meditated  by  both  the  prisoners  from  the  beginning. 
The  prisoners'  counsel  insisting  that  under  these  circumstances  there 
was  no  larceny,  I  reserved  the  point  for  the  decision  of  the  Court  of 
Criminal  Appeal. 

(Signed)  J.  Barnard   Byles. 

Willoughby,  for  the  prisoners.  The  prisoners  were  not  properly 
convicted  of  larceny,  for  the  prosecutor  giave  credit  to  the  prisoners  for 
the  £3  16s.,  and  delivered  the  onions  to  them  on  such  credit.  [Kelly, 
C.  B.  What  credit  was  given?  The  case  is  like  Reg.  v.  McGrath  (39 
L.J.  7,  M.  C. ;  11  Cox  C.  C.  347).]  This  is  a  different  case.  There  the 
monev  was  obtained  against  the  will  of  the  owner.  Here  the  onions 
were  unloaded  by  the  prosecutor.  Moreover,  it  was  proved,  though 
not  stated  in  the  case,  that  the  prosecutor  called  on  the  prisoners  in 
the  evening  for  the  money. 

The  learned  counsel  then  cited  2  East  P.  C.  669  (edit.  a.d.  1805), 
and  the  cases  of  Rex  v.  Harvey  and  Reg.  v.  Nicholson,  there  cited. 
Also  Rex  V.  Oliver,  2  Leach,  1072  ;  R.  v.  Adams,  2  Rus.  on  Crimes, 
209  ;  Tooke  v.  Hollingsworth,  5  T.  R.  231  (Buller,  J.)  ;  Reg.  v.  Small, 
8  C.  &  P.  46  ;  Reg.  v.  Stewart,  1  Cox  C.  C.  174  ;  Reg.  v.  McKale,  37 
L.  J.  97,  M.  C. ;  11  Cox  C.  C.  32. 

Focock,  for  the  prosecution,  w^as  not  called  upon  to  argue. 

Kelly,  C.B.  I  am  of  opinion  that  the  conviction  should  be  affirmed, 
[f  in  this  case  it  had  been  intended  by  the  prosecutor  to  give  credit  for 
the  price  of  the  onions,  even  for  a  single  hour,  it  would  not  have  been 
larceny  ;  but  it  is  clear  that  no  credit  was  given  or  ever  intended  to 
be  given.  Any  idea  of  that  is  negatived  by  the  statement  in  the  case 
that  the  prisoners  agreed  to  buy  for  ready  money.  In  all  such  sales 
the  delivery  of  the  thing  sold,  or  of  the  money,  the  price  of  the  thing 
sold,  must  take  place  before  the  other ;  i.  e.,  the  seller  delivers  the 
thing  with  one  hand  while  he  receives  the  money  with  the  other.  No 
matter  which  takes  place  first,  the  transaction  is  not  complete  until 
both  have  taken  place.  If  the  seller  delivers  first  before  the  money 
is  paid,  and  the  buyer  fraudulently  runs  off  with  the  article,  or  if,  on 
the  other  hand,  the  buyer  pays  first,  and  the  seller  fraudulently  runs 
off  with  the  money  without  delivering  the  thing  sold,  it  is  equally 
larceny. 

Mellor,  J.  I  am  of  the  same  opinion.  The  prisoners  obtained 
possession  of  the  onions  by  a  trick,  and  never  intended  to  pay  for 
them,  as  the  jury  found.  From  the  very  first  they  meditated  the  fraud 
to  get  possession  of  them,  which  puts  an  end  to  any  question  of  its 
being  larceny  or  not. 

PiGOTT,  B.     The  facts    are   that  the  prosecutor  never  intended  to 


SECT.  II.J  COMMONWEALTH   V.   O'MALLEY.  523 

part  with  the  possession  of  the  onions  except  for  ready  money.  He 
did  part  with  the  possession  to  tlie  prisoners,  who  obtained  the  posses- 
sion by  fraud.  The  prisoners  then  brought  in  aid  force  to  keep  pos- 
session, and  refused  to  restore  the  onions  or  pay  the  price.  Therefore 
the  possession  was  obtained  against  the  will  of  the  prosecutor. 
Denman,  J.,  and  Pollock,  B.,  concurred.^ 

Conviction  affirmed. 


COMMONWEALTH   v.    O'MALLEY. 

Supreme  Judicial  Court  of  Massachusetts.     1867. 

[Reported  97  Massachusetts,  584.] 

Hoar,  J.^  We  are  of  opinion  that  there  was  no  evidence  to  sustain 
the  indictment  for  embezzlement,  and  that  the  conviction  was  wrong. 
The  defendant  had  been  previously  acquitted  of  larceny  upon  proof  of 
the  same  facts  ;  and  it  is  therefore  of  great  importance  to  him,  if  the 
offence  committed,  if  any,  was  larceny,  that  it  should  be  so  charged. 

To  constitute  the  crime  of  embezzlement,  the  property  which  the 
defendant  is  accused  of  fraudulently  and  feloniously  converting  to  his 
own  use,  must  be  shown  to  have  been  entrusted  to  him,  so  that  it  was 
in  his  possession,  and  not  in  the  possession  of  the  owner.  But  the 
facts  reported  in  the  bill  of  exceptions  do  not  show  that  the  possession 
of  the  owner  of  the  money  was  ever  divested.  She  allowed  the  de- 
fendant to  take  it  for  the  purpose  of  counting  it  in  her  presence,  and 
taking  from  it  a  dollar,  which  she  consented  to  lend  him.  The  money 
is  alleo-ed  to  have  consisted  of  two  ten-dollar  bills,  three  five-dollar 
bills,  a  two-dollar  bill,  and  a  one-dollar  bill,  amounting  in  all  to  thirty- 
eight  dollars.  The  one  dollar  he  had  a  right  to  retain,  but  the  rest 
of  the  money  he  was  only  authorized  to  count  in  her  presence  and  hand 
back  to  her.  He  had  it  in  his  hands,  but  not  in  his  possession,  any  more 
than  he  would  have  had  possession  of  a  chair  on  which  she  might  have 
invited  him  to  sit.  The  distinction  pointed  out  in  the  instructions  of 
the  court  between  his  getting  it  into  his  hands  with  a  felonious  intent, 
or  forming  the  intent  after  he  had  taken  it,  was  therefore  unimportant. 
The  true  distinction,  upon  principle  and  authority,  is  that  stated  by  the 
cases  upon  the  defendant's  brief,  that  if  the  owner  puts  his  property 
into  the  hands  of  another,  to  use  it  or  do  some  act  in  relation  to  it,  in 
his  presence,  he  does  not  part  with  the  possession,  and  the  conversion 
of  it,  animo  furandi,  is  larceny.  Thus  in  The  People  v.  Call,  1  Denio, 
120,  the  defendant  took  a  promissory  note  to  endorse  a  payment  of 
interest  upon  it,  in  the  presence  of  the  owner  of  the  note,  and  then 
carried  it  off;  and  it  was  held  that  he  was  rightly  convicted  of  larceny, 

1  See  Reg.  v.  Bramley,  8  Cox  C.  C.  468.  —Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


524  HILDEBEAND    V.    PEOPLE.  [CHAP.  VIII. 

although  he  might  have  first  formed  the  intention  of  appropriating  it 
after  it  was  put  in  his  hands.  So  where  a  shopman  placed  some  cloth- 
ing in  the  hands  of  a  customer,  but  did  not  consent  that  he  should  take 
it  away  from  the  shop  till  he  should  have  made  a  bargain  with  the 
owner,  who  was  in  another  part  of  the  shop,  his  carrying  it  off  was  held 
to  be  larceny.  Commonwealth  v.  Wilde,  5  Graj',  83.  See  also  Kegina 
V.  Thompson,  9  Cox  Crim.  Cas.  244;  Regina  v.  Janson,  4  Cox  Crim. 
Cas.  82.  In  all  such  cases  the  temporary  custody  for  the  owner's  pur- 
poses, and  in  his  presence,  is  only  the  charge  or  custody  of  an  agent 
or  servant ;  gives  no  right  of  control  against  the  owner  ;  and  the  owner's 
possession  is  unchanged.  Exceptions  sustained.^ 


HILDEBEAND  v.  PEOPLE. 
Court  of  Appeals  of  New  York.     1874. 

[Reported  56  Neiv  York,  394.] 

Church,  C.  J.^  The  prosecutor  handed  the  prisoner,  who  was  a  bar- 
tender in  a  saloon,  a  flftv-dollar  bill  (greenback)  to  take  ten  cents  out 
of  it  in  payment  for  a  glass  of  soda.  The  prisoner  put  down  a  few 
coppers  upon  the  counter,  and  when  asked  for  the  change,  he  took 
the  prosecutor  by  the  neck,  and  shoved  him  out  doors,  and  kept  the 
money. 

The  question  is  presented  on  behalf  of  the  prisoner  whether  larceny 
can  be  predicated  upon  these  facts.  There  was  no  trick,  device,  or 
fraud  in  inducing  the  prosecutor  to  deliver  the  bill ;  but  we  must 
assume  that  the  jury  found,  and  the  evidence  was  sufficient  to  justify 
it,  that  the  prisoner  intended,  at  the  time  he  took  the  bill,  feloniously 
to  convert  it  to  his  own  use. 

It  is  urged  that  this  is  not  sufficient  to  convict,  because  the  prosecutor 
voluntarily  parted  with  the  possession  not  only,  but  with  the  property, 
and  did  not  expect  a  retux-n  of  the  same  propert}'.  This  presents  the 
point  of  the  case.  When  the  possession  and  property  are  delivered 
voluntarily^,  without  fraud  or  artifice  to  induce  it,  the  animus  furandi 
will  not  make  it  larcen^^,  because  in  such  a  case  there  can  be  no  tres- 
pass, and  thei-e  can  be  no  larceny  without  trespass.  43  N.  Y.  6L 
But  in  this  case  I  do  not  think  the  prosecutor  should  be  deemed  to 
have  parted  either  with  the  possession  of,  or  property  in,  the  bill.  It 
was  an  incomplete  transaction,  to  be  consummated  in  the  presence  and 
under  the  personal  control  of  the  prosecutor.  There  was  no  trust  or 
confidence  reposed  in  the  prisoner,  and  none  intended  to  be.     The  de- 

1  Ace.  Reg.  V.  Thompson,  9  Cox  C.  C.  244;  People  v.  Johnson,  91  Cal.  265;  People 
V.  Call,  1  Denio,  120.  —Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SiiCT.  II.]  IIILDEBUAND    V.    PEOPLE.  525 

livery  of  the  bill  and  the  giving  change  were  to  be  sinaultaneous  acts, 
and  until  the  latter  was  paid  the  delivery  was  not  complete.  The 
prosecutor  laid  his  bill  upon  the  counter,  and  impliedly  told  the  pris- 
oner that  he  could  have  it  upon  delivering  to, him  $49.90.  Until  this 
was  done  neither  possession  nor  property  passed  ;  and  in  the  mean 
time  the  bill  remained  in  legal  contemplation  under  the  control  and  in 
the  possession  of  the  prosecutor.  This  view  is  not  without  authoi'ity. 
The  case  of  Reg.  v.  McKale,  11  Cox  C.  C.  32,  is  instructive.  The 
prosecutrix  put  down  two  shillings  upon  the  counter,  expecting  to 
ceceive  small  change  for  it  from  the  prisoner.  There  being  several 
pieces  on  the  counter,  the  prosecutrix  took  up  a  shilling  of  the  pris- 
oner's money,  and  a  shilling  of  her  own,  which  she  did  not  discover 
until  she  was  putting  them  in  the  drawer.  A  confederate  just  then 
attracted  her  attention,  and  the  prisoner  passed  out  with  the  two  shil- 
lings. It  was  held,  upon  full  consideration,  that  the  conviction  for 
stealing  the  two  shillings  was  right.  Kelly,  C.  B.,  said:  "  The  ques- 
tion is,  did  she  part  with  the  money  she  placed  on  the  counter?  I  say, 
certainly  not,  for  she  expected  to  receive  two  shiUings  of  the  prisoner's 
money  in  lieu  of  it.  .  .  .  Placing  the  money  on  the  counter  was  only 
one  step  in  the  transaction.  The  act  of  the  prisoner  in  taking  up  the 
money  does  not  affect  the  question  whether  the  prosecutrix  parted  with 
the  property  in  it.  The  property  is  not  parted  with  until  the  whole 
transaction  is  complete,  and  the  conditions  have  been  fulfilled  on  which 
the  property  is  to  be  parted  with.  ...  I  am  of  the  opinion  that  the 
property  in  the  two-shilling  piece  was  not  out  of  the  prosecutrix  for  a 
momeiit." 

In  Reg.  V.  Slowly,  12  Cox  C.  C.  269,  the  prosecutor  sold  onions  to 
the  prisoners,  who  agreed  to  pay  ready  money  for  them.  The  onions 
were  unloaded  at  a  place  indicated  by  the  prisoners,  and  the  prosecutor 
signed  a  receipt  at  the  request  of  the  prisoners,  when  they  refused  to 
restore  the  onions  or  pay  the  price.  A  conviction  for  larceny  was  held 
right,  the  jury  having  found  the  original  intention  felonious.  This  was 
upon  the  ground  that  the  delivery  and  payment  were  to  be  simulta 
neons  acts,  that  the  property  did  not  pass  until  payment,  and  tha/ 
no  credit  or  trust  was  intended.  See  also  id.,  248,  257  ;  2  Russ.  oi 
Cr.,  22. 

The  counsel  for  the  prisoner  relies  upon  the  case  of  Reg.  v.  Thomas., 
9  C.  &  P.  741 .  There  the  prosecutor  permitted  the  prisoner  to  take  a 
sovereign  to  go  out  to  get  it  changed.  The  court  held  that  the  prisoner 
could  not  be  convicted  of  larceny,  because  he  had  divested  himself  of 
the  entire  possession  of  the  sovereign  and  never  expected  to  have  it 
back.  This  was  a  nisi  prius  decision,  and  is  not  as  authoritative  for 
that  reason  ;  but  the  distinction  between  that  case  and  this  is  the  one 
first  suggested.  There  all  control,  power,  and  possession  was  parted 
with,  and  the  prisoner  was  intrusted  with  the  money,  and  was  not  ex- 
pected to  return  it.  Here,  as  we  have  seen,  the  prosecutor  retained  the 
control  and  legally  the  possession  and  property.      The  line  of  dis- 


526  COMMONWEALTH    V.    LANNAN.  [CHAP.  VIII. 

tinction  is  a  narrow  one,  but  it  is   substantial   and   sufficiently  well 
defined. 

The  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed.^ 


COMMONWEALTH  v.  LANNAN. 
Supreme  Judicial  Court  of  Massachusetts.     1891. 

[Reported  153  Massachusetts,  287.] 

Holmes,  J.  The  defendant  is  indicted  for  the  larceny  of  promissory 
notes,  the  property  of  one  Teeling,  and  has  been  found  guilty.  The 
case  is  before  us  on  exceptions  to  the  refusal  of  the  court  below  to  rule 
that  the  evidence  was  insufficient  to  support  the  indictment,  and  also  to 
the  instructions  given  to  the  jury.  The  evidence  tended  to  prove  the 
following  facts.  The  defendant  was  an  attorney  employed  by  Teeling 
to  ascertain  the  price  of  certain  land.  The  price  mentioned  to  him 
was  one  hundred  and  twenty-five  dollars.  He  told  Teeling  that  the 
lowest  price  was  three  hundred  and  twentj'-five  dollars,  three  hundred 
<lollars  to  go  to  the  owners  of  the  land,  fifteen  to  Bent,  the  agent,  with 
whom  the  defendant  communicated,  and  ten  dollars  to  the  defendant, 
reeling  assented  to  the  terms,  and  gave  Bent  directions  as  to  the  deed. 
When  the  deed  was  read}-,  Teeling,  Bent,  and  the  defendant  met.  The 
defendant  approved  the  deed,  and  said  to  Teeling,  "  Pay  over  the 
money."  Teeling  counted  out  three  hundred  and  twent3'-five  dollars 
on  the  table  in  front  of  the  defendant,  who  counted  it,  took  it  from  the 
table,  and  requested  Bent  to  go  into  the  next  room.  He  then  gave 
Bent  one  hundred  and  twent3'-five  dollars  of  the  money,  returned  to 
Teeling,  gave  him  a  receipt  for  ten  dollars  and  kept  the  rest  of  the 
money.  The  court  instructed  the  jury  "  that  upon  the  evidence  the}' 
might  find  the  defendant  guilty  of  larceny  if  the}'  were  satisfied  that  he 
had  obtained  the  money  of  said  Teeling  by  false  premeditated  trick  or 
device  ;  that  although  Teeling  might  have  given  the  manual  custody  of 
the  money  to  the  defendant,  nevertheless  the  legal  possession  would 
remain  in  Teeling  under  such  circumstances,  and  the  lai'cen}'  would  be 
complete  when  the  defendant,  after  thus  getting  possession  of  Teeling's 
money  and  inducing  him  to  count  out  one  hundred  and  ninet}'  dollars 
more  than  was  needed,  appropriated  it  to  his  own  use." 

When  the  defendant  took  up  the  money  from  the  table  it  had  not  j'et 
passed  under  the  dominion  of  Bent,  who  represented  the  opposite  part}'. 
The  defendant  did  not  receive  it  as  representing  the  opposite  party ; 
he  purported  to  be  acting  in  the  interest  of  Teeling.     The  jury  would 

1  Ace.  Reg.  V.  Johnson,  5  Cox  C.  C.  372  ;  Levy  v.  State,  79  Ala.  259  ;  State  v.  Fenn, 
41  Conn.  590  ;  Huber  v.  State,  57  Ind.  341  ;  State  v.  Anderson,  25  Minn.  66.  See  State 
V.  Watson,  41  N.  H.  533  —Ed. 


SECT.  II.]  COMMONWEALTH  V.   LANNAN.  527 

have  been  warranted  in  finding  that  Teeling  impliedly  authorized  the 
defendant  to  take  up  the  money  from  the  table,  but  they  only  could 
have  found  that  he  allowed  him  to  do  so  for  the  purpose  of  immediately 
transferring  the  identical  bills,  or  all  but  ten  dollars  of  them,  to  Bent 
under  Teeling's  eyes.  Subject  to  a  single  consideration,  to  be  men- 
tioned later,  there  is  no  doubt  that  in  thus  receiving  the  money  for  a 
moment  the  defendant  purported  at  most  to  act  as  Teeling's  servant, 
or  hand,  under  his  immediate  direction  and  control.  Therefore  not 
only  the  title  to  the  money,  but  the  possession  of  it,  remained  in  Teel- 
ino-  while  the  money  was  in  the  defendant's  custod}-.  Commonwealth 
V.  O'Malle}',  97  Mass.  584.  If  the  defendant  had  misappropriated  the 
whole  sum,  or  if  he  misappropriated  all  that  was  left  after  paying 
Bent,  the  offence  would  be  larceny.  Commonwealth  v.  Berry,  99  Mass. 
428;  Regina  v.  Cooke,  L.  R,  1  C.  C.  295;  s.  c.  12  Cox  C.  C.  10; 
Regina  v.  Thompson,  Leigh  &  Cave,  225,  230;  2  East  P.  C.  c.  16, 
§§  110,  115.  See  further  Commonwealth  v.  Donahue,  148  Mass.  529, 
530,  and  cases  cited. 

The  instructions  made  the  defendant's  liability  conditional  upon  his 
having  obtained  the  money  from  Teeling  by  a  premeditated  trick  or 
device.  If  he  did  so,  and  appropriated  all  that  was  left  after  paying 
Bent,  he  was  guilty  of  larceny,  irrespective  of  the  question  whether 
Teeling  retained  possession,  according  to  the  dicta  in  Commonwealth  w. 
Barry,  124  Mass.  325,  327,  under  the  generally  accepted  doctrine  that 
if  a  party  fraudulently  obtains  possession  of  goods  from  the  owner 
with  intent  at  the  time  to  convert  them  to  his  own  use,  and  tho 
owner  does  not  part  with  the  title,  the  offence  is  larcen\-.  Even  if  the 
possession  had  passed  to  the  defendant,  there  can  be  no  question  that 
the  title  remained  in  Teeling  until  the  money  should  be  handed  to  Bent. 
See  note  to  Regina  r.  Thompson,  Leigh  &  Cave,  225,  230. 

In  this  case,  however,  by  the  terms  of  his  agreement  with  Teeling, 
the  defendant  had  the  right  to  retain  ten  dollars  out  of  the  moneys  in. 
his  hands,  and  it  may  be  argued  that  it  is  impossible  to  particularize 
the  bills  which  were  stolen,  seeing  that  the  defendant  appropriated  bills 
to  the  amount  of  one  hundred  and  ninety-five  dollars  all  at  once,  with- 
out distinguishing  between  the  ten  he  had  a  right  to  select  and  the  one 
hundred  and  eighty-five  to  which  he  had  no  right.  This  argument 
appears  to  have  troubled  some  of  the  English  judges  in  one  case, 
although  they  avoided  resting  their  decision  on  that  ground.  Regina 
V.  Thompson,  Leigh  &  Cave,  233,  236,  238.  If  the  argument  be  sound, 
it  might  cause  a  failure  of  justice  by  the  merest  technicality.  For  it 
easily  might  happen  that  there  was  no  false  pretence  in  the  case,  and 
that  a  man  who  had  appropriated  a  large  fund,  some  small  part  of 
which  he  had  a  right  to  take,  would  escape  unless  he  could  be  held 
guilty  of  larceny.  We  think  the  answer  to  the  argument  is  this.  All 
the  bills  belonged  to  Teeling  until  the  defendant  exercised  his  right  to 
appropriate  ten  dollars  of  them  to  his  claim.  He  could  make  an  appro- 
priation only  by  selecting  specific  bills  to  that  amount.     He  had  no 


528  reporter's  note.  [chap.  viii. 

property  in  the  whole  mass  while  undivided.  If  he  appropriated  the 
bills  as  a  whole,  he  stole  the  whole,  and  the  fact  that  he  might  have 
taken  ten  dollars  does  not  help  him,  because  he  did  not  take  any  ten 
dollars  by  that  title,  or  in  the  onl^'  way  in  which  he  had  a  right  to  take 
it.  The  later  English  cases  seem  to  admit  that  a  man  ma}'  be  liable  for 
the  larceny  of  a  sovereign  given  him  in  payment  of  a  debt  for  a  less 
amount  in  expectation  of  receiving  change,  as  well  as  in  cases  like 
Commonwealth  v.  Berry,  ubi  supra,  where  there  is  nothing  due  the 
defendant;  Regina  v.  Gumble,  L.  R.  2  C.  C.  1  ;  s.  c.  12  Cox  C.  C. 
248  ;  Regina  v.  Bird,  12  Cox  C.  C.  257,  260.  See  further  Hildebrand 
V.  People,  56  N.  Y.  394. 

Although  the  point  is  immaterial  to  the  second  ground  of  liability 
which  we  have  mentioned,  we  ma}'  add  that  we  are  not  disposed  to 
think  that  the  fact  that  the  defendant  may  have  been  expected  to 
select  ten  dollars  for  himself  during  the  moment  that  the  bills  were  in 
his  hands  was  sufficient  to  convert  his  custodj'  into  possession.  That 
right  on  his  part  was  merely  incidental  to  a  different  governing  object, 
and  it  would  be  importing  into  a  very  simple  transaction  a  complexity 
which  does  not  belong  there  to  interpret  it  as  meaning  that  the  defen- 
tlant  held  the  bills  on  his  own  behalf  with  a  lien  upon  them  until  he 
could  withdraw  his  pa}'. 

It  is  not  argued  that  the  averment  as  to  promissory  notes  is  not 
sustained.     Commonwealth  v.  Jenks,  138  Mass.  484,  488. 

Exceptions  overruled. 


REPORTER'S  NOTE. 
Common  Pleas.     1487. 

[Reported  Year  Book  3  Hen.  VII.,  12,  pi.  9.] 

HussEY  put  a  question.  If  a  shepherd  steals  the  sheep  which  are 
in  his  charge,  or  a  butler  the  pieces  which  arc  in  his  charge,  or  servants 
other  things  which  are  in  their  charge,  whether  it  shall  be  called  felony. 
And  it  seemed  to  him  that  it  would.  And  he  cited  a  case  which  was, 
that  a  butler  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
hanged  for  it.  Haugh  [J.]  cited  the  case  of  Adam  Goldsmith  ol 
London,  who  had  stolen  certain  stuff  which  was  in  his  charge,  and  was 
hanged  for  it.  Brian  [C.  J.]  —  It  cannot  be  felony,  because  he  could 
not  take  vi  <&  armis,  because  he  had  charge  of  it.  And  the  justices 
were  of  the  same  opinion,  and  so  no  discussion,  etc.  R.  see  M.  13  E. 
4  f.  3,  P.  13  E.  4  f.  9,  T.  22  E.  3  Coron  256,  what  shall  be  called  felony 
of  goods. 


SECT.  II.]  reporter's   NOTE.  529 


REPORTER'S  NOTE. 
King's  Bench.     1506. 

[Reported  Year  Book  21  Hen.VIL,  \4,pl.  21.] 

In  the  King's  Bench  Cutler,  Serjeant,  and  Pigot,  apprentice,  were 
at  the  bar  ;  and  Pigot  put  this  question  to  Cutler :  If  I  deliver  a  bag 
of  mone}'  to  my  servant  to  keep,  and  he  flees  and  goes  away  from  me 
with  the  bag,  is  it  felony  ?  Cutler  said  yes  ;  for  so  long  as  he  is  in  my 
house,  or  with  me,  whatever  I  have  delivered  to  him  is  adjudged  in  my 
possession.  As  my  butler  who  has  my  plate  in  charge,  if  he  flees  with 
it,  it  is  felopy ;  the  same  law  if  he  who  keeps  my  horse  goes  away  with 
it ;  and  the  case  is,  that  they  are  at  all  times  in  my  possession.  But 
if  I  deliver  a  horse  to  my  servant  to  ride  on  a  journey,  and  he  flees 
M-ith  it,  it  is  not  felony,  for  he  comes  lawfully  by  the  horse  by  delivery. 
And  so  it  is,  if  I  give  him  a  bag  to  carry  to  London,  or  to  pay  to  some 
one,  or  to  buy  something,  and  he  flees  with  it,  it  is  not  felony  ;  for  it 
is  out  of  my  possession,  and  he  comes  lawfully  by  it.  Pigot.  —  It 
may  well  be,  for  the  master  in  all  these  cases  has  a  good  action  against 
him,  sc.  detinue,  or  action  of  account. 


REPORTER'S  NOTE. 

Common  Pleas.     1533. 

[Reported  D/^er,  5  a.] 

YoRKE  puts  this  question  npon  the  statute  21  H.  VIII.  [c.  7.],  which 
is  "  that  if  any  master  or  mistress  deliver  any  goods  to  his  servant  to 
keep,  who  withdraws  himself,  and  goes  away  with  the  goods  to  the 
intent  to  steal  them,  or  if  he  embezzle  the  goods  of  his  master,  or 
convert  them  to  his  own  use,  if  the  goods  be  worth  forty  shillings,  it 
shall  be  felony."  ^  And  a  man  delivers  a  bond  to  his  servant  to  receive 
£20  of  the  obligor,  and  the  servant  receives  them,  and  after  that  goes 
awaj',  or  converts  them  to  his  own  use,  whether  this  be  within  the  mean- 
ing of  the  statute  or  not  ?  And  by  the  better  opinion  it  is  not,  for  he 
did  not  deliver  to  him  any  goods  ;  for  a  bond  is  not  a  thing  in  value,  but 
a  chose  in  action.  And  Englefielde,  J.,  said  that  if  a  man  deliver  to 
his  apprentice  wares  or  merchandises  to  sell  at  a  market  or  fair,  and  he 

1  The  preamble  to  this  act  concludes, "  which  misbehavior  so  done  was  doubtful  in  the 
common  law  whether  it  were  felony  or  not,  and  by  reason  thereof  the  foresaid 
servants  have  been  in  great  boldness  to  commit  such  or  like  offences."  By  Sect.  2 
it  is  provided  that  the  act  shall  not  apply  to  an  apprentice,  or  to  a  servant  undei 
the  age  of  eighteen.  —  Ed. 


530  bazeley's  case.  [chap.  viii. 

sell  them,  and  receive  money  for  them,  and  go  away,  that  is  not  within 
the  statute  ;  for  he  had  not  it  by  the  delivery  of  his  master,  nor  goes 
off  with  the  things  deUvered  to  him.  Qucere.  For  the  money  was  not 
delivered  to  the  servant  by  the  hands  of  his  master,  but  of  the  obligor. 
But  if  one  of  my  servants  deliver  to  another  of  my  servants  my  goods, 
and  he  go  off  with  them,  that  is  felony  ;  for  it  shall  be  said  my  delivery. 
And  FiTZHERBERT,  J.,  Said  that  in  the  case  of  a  bond,  by  gift  of  omnia 
bona  et  catalla,  bonds  pass.'^ 

BAZELEY'S  CASE. 

Crown  Case  Reserved.     1799. 

[Reported  Leach,  4th  ed.  835.] 

At  the  old  Bailey  in  February  Session,  1799,  Joseph  Bazeley  was 
tried  before  John  Silvester,  Esq.,  Common  Serjeant  of  the  city  of  Lon- 
don, for  feloniously  stealing  on  the  18th  January  preceding,  a  bank-note 
of  the  value  of  one  hundred  pounds,  the  property  of  Peter  Esdaile, 
Sir  Benjamin  Hammett,  William  Esdaile,  and  John  Hammett. 

The  following  facts  appeared  in  evidence :  The  prisoner,  Joseph 
Bazeley,  was  the  principal  teller  at  the  house  of  Messrs.  Esdaile's  and 
Hammett's,  bankers,  in  Lombard  Street,  at  the  salary  of  £100  a  year, 
and  his  duty  was  to  receive  and  pay  money,  notes,  and  bills,  at  the 
counter.  The  manner  of  conducting  the  business  of  this  banking- 
house  is  as  follows  :  There  are  four  tellers,  each  of  whom  has  a  separate 
money  book,  a  separate  money-drawer,  and  a  separate  bag.  The 
prisoner  being  the  chief  teller,  the  total  of  the  receipts  and  payments 
of  all  the  other  money-books  were  every  evening  copied  into  his,  and 
the  total  balance,  or  rest,  as  it  is  technically  called,  struck  in  his  book 
and  the  balances  of  the  other  money-books  paid,  by  the  other  tellers, 
over  to  him.  When  any  moneys,  whether  in  cash  or  notes,  are  brought, 
by  customers  to  the  counter  to  be  paid  in,  the  teller  who  receives  it; 
counts  it  over,  then  enters  the  bank-notes  or  drafts,  and  afterwards  the 
cash,  under  the  customer's  name,  in  his  book ;  and  then,  after  casting 
up  the  total,  it  is  entered  in  the  customer's  book.  Tlie  money  is  then 
put  into  the  teller's  bag,  and  the  bank-notes  or  other  papers,  if  any, 
put  into  a  box  which  stands  on  a  desk  behind  the  counter,  directly 
before  another  clerk,  who  is  called  the  cash  book-keeper,  who  makes 
an  entry  of  it  in  the  received  cash-book  in  the  name  of  the  person  who 
has  paid  it  in,  and  which  he  finds  written  by  the  receiving  teller  on  the 
back  of  the  bill  or  note  so  placed  in  the  drawer.  The  prisoner  was 
treasurer  to  an  association  called  "  The  Ding  Dong  Mining  Company  ; " 
and  in  the  course  of  the  year  had  many  bills  drawn  on  him  by  the  com- 

1  But  see,  contra,  on  this  last  point,  Calye's  case,  8  Co.  33.  —  Ed. 


SECT.  IL]  BAZELEY'S    CASE.  531 

pany,  and  many  bills  drawn  on  other  persons  remitted  to  him  by  the 
company.  In  the  month  of  January,  1799,  the  prisoner  had  accepted 
l)ills  on  account  of  the  conpauy,  to  the  amount  of  £112  4s.  \d  and 
liad  in  his  possession  a  bill  of  £166  7s.  od.  belonging  to  the  company, 
but  which  was  not  due  until  the  9th  February.  One  of  the  bills,  amount- 
ing to  £100,  which  the  prisoner  had  accepted  became  due  on  the  18th 
January.  Mr.  William  Gilbert,  a  grocer  in  the  Surry-road,  lilack- 
IViars,  kei)t  his  cash  at  the  banking-house  of  the  prosecutors,  and  on  the 
18th  January,  1799,  he  sent  his  servant,  George  Cock,  to  pay  in  £137. 
This  sum  consisted  of  £122  in  bank-notes,  and  the  rest  in  cash.  One 
of  these  bank-notes  was  the  note  which  the  prisoner  was  indicted  lor 
stealing.  The  prisoner  received  this  money  from  George  Cock,  and 
after  entering  the  £137  in  Mr.  Gilbert's  bank-book,  entered  the  £15 
tash  in  his  own  money-book,  and  put  over  the  £22  in  bank-notes  into 
♦he  drawer  behind  him,  keeping  back  the  £100  bank-note,  which  he  put 
iito  his  pocket,  and  afterwards  paid  to  a  banker's  clerk  the  same  day 
At  a  clearing-house  in  Lombard'  Street,  in  discharge  of  the  £100  bill 
which  he  had  accepted  on  account  of  the  Ding  Dong  Mining  Company. 
To  make  the  sum  in  Mr.  Gilbert's  bank-book,  ami  the  sum  in  the  book 
of  the  banking-house  agree,  it  appeared  that  a  unit  had  been  added  to 
the  entry  of  £37  to  the  credit  of  Mr.  Gilbert,  in  the  book  of  the  bank- 
jng-house,  but  it  did  not  appear  by  any  direct  proof  that  this  alteration 
had  been  made  by  the  prisoner ;  it  appeared,  however,  that  he  had  made 
a  confession,  but  the  confession  having  been  obtained  under  a  promise 
of  favor,  it  was  not  given  in  evidence. 

Const  and  Jackson,  the  prisoner's  counsel,  submitted  to  the  court 
that  to  constitute  a  larcen}',  it  was  necessary,  in  point  of  law,  that  the 
property  should  be  taken  from  the  possession  of  the  prosecutor,  but 
that  it  was  clear  from  the  evidence  in  this  case  that  the  bank-note 
charged  to  have  been  stolen  never  was  either  in  the  actual  or  the 
constructive  possession  of  Esdaile  and  Hammett,  and  that  even  if  it 
had  been  in  their  possession,  yet  that  from  the  manner  in  which  it  had 
been  secreted  bj-  the  prisoner,  it  amounted  only  to  a  breach  of  trust. 

The  court  left  the  facts  of  the  case  to  the  consideration  of  the  jury, 
and  on  their  finding  the  prisoner  guilty,  the  case  was  reserved  for  the 
opinion  of  the  twelve  judges  on  a  question  whether,  under  the  circum- 
stances above  stated,  the  taking  of  the  bank-note  was  in  law  a  felonious 
taking,  or  only  a  fraudulent  breach  of  trust. 

The  case  was  accordingh-  argued  before  nine  of  the  judges  in  the 
Exchequer  Chamber,  on  Saturday,  27th  April,  1799,  by  Const  for  the 
prisoner,  and  by  Fielding  for  the  Crown. 

Const,  for  the  prisoner,  after  remarking  that  the  prosecutor  never  had 
actual  possession  of  the  bank-note,  and  defining  the  several  offences  of 
larceny,  fraud,  and  breach  of  trust,  viz  ,  that  larceny  is  the  taking  of 
valuable  property  from  the  possession  of  another  without  his  consent 
and  against  his  will ;  secondl}',  that  fraud  consists  in  obtaining  valua- 
ble property  from  the  possession  of  another  with  his  consent  and    will, 


532  bazeley's  case.  [chap.  viii. 

b}-  means  of  some  artfnl  device,  against  the  subtilt}'  of  which  ccmraon 
prudence  and  caution  are  not  sufficient  safeguards  ;  and,  thirdly,  that 
breach  of  trust  is  the  abuse  or  misusing  of  that  property*  which  the 
owner  has,  without  an}'  fraudulent  seducement,  and  with  his  own  free 
will  and  consent,  put,  or  permitted  to  be  put,  either  for  particular  or 
general  purposes,  into  the  possession  of  the  trustee,  —  proceeded  to 
argue  the  case  upon  the  following  points  :  — 

First,  That  the  prosecutors  cannot,  in  contemplation  of  law,  be  said 
to  have  had  a  constructive  possession  of  this  bank-note,  at  the  time 
the  prisoner  is  charged  with  having  tortiously  converted  it  to  his  own 
use. 

Secondly,  That,  supposing  the  prosecutors  to  have  had  the  possession 
of  this  note,  the  prisoner,  under  the  circumstances  of  this  case,  cannot 
be  said  to  have  tortiously  taken  it  from  that  possession  with  a  felonious 
intention  to  steal  it. 

Thirdly,  That  the  relative  situation  of  the  prosecutors  and  the  pris- 
oner makes  this  transaction  merely  a  breach  of  trust ;  and, 

Fourthly,  That  this  is  not  one  of  those  breaches  of  trust  which  the 
Legislature  has  declared  to  be  felony. 

The  first  point,  viz.,  that  the  prosecutor  cannot,  in  contempla- 
tion of  law,  be  said  to  have  had  a  constructive  possession  of  this 
bank-note  at  the  time  the  prisoner  is  charged  with  having  tortiousl}' 
converted  it  to  his  own  use.  To  constitute  the  crime  of  larceu}', 
the  property  must  be  taken  from  the  possession  of  the  owner ;  this 
possession  must  be  either  actual  or  constructive.  It  is  clear  that  the 
prosecutors  had  not,  upon  the  present  occasion,  the  actual  possession 
of  the  bank-note,  and  therefore  the  inquiry  must  be,  whether  they  had 
the  constructive  possession  of  it ;  or,  in  other  words,  whether  the  pos- 
session of  the  servant  was,  under  the  circumstances  of  this  case,  the 
possession  of  the  master.  Property  in  possession  is  said  by  Sir  William 
Blackstone  to  subsist  only  where  a  man  hath  both  the  right  to,  and 
also  the  occupation  of,  the  property.  The  prosecutors  in  the  present 
case  had  only  a  right  or  title  to  possess  the  note,  and  not  the  absolute 
or  even  qualified  possession  of  it.  It  was  never  in  their  custody  or 
under  their  control.  There  is  no  difference  whatever  as  to  the  question 
of  possession  between  real  and  personal  property  ;  and  if,  after  the 
death  of  an  ancestor,  and  before  the  entry  of  his  heir  upon  the  descend- 
ing estate,  or  if,  after  the  death  of  a  particular  tenant,  and  before  the 
entry  of  the  remainder-man,  or  reversioner,  a  stranger  should  take  pos- 
sesion of  the  vacant  land,  the  heir  in  the  one  case,  and  the  remainder- 
man or  reversioner  in  the  other,  would  be  like  the  pi'osecutor  in  the 
present  case,  only  entitled  to,  but  not  possessed  of,  the  estate  ;  and 
each  of  them  must  recover  possession  of  it  by  the  respective  remedies 
which  the  law  has  in  such  cases  made  and  provided.  Suppose  the  pris- 
oner had  not  parted  with  the  note,  but  had  merely  kept  it  in  his  own 
custody,  and  refused  on  any  pretence  whatever  to  deliver  it  over  to  his 
emplovers,  they  could  only  have  recovered  it  b\'  means  of  an  action  of 


SECT.  II.]  BAZELP^Y'S   CASE.  533 

trover  or  detinue,  the  first  of  which  presupposes  the  person  against 
whom  it  is  brought  to  have  obtained  possession  of  the  property  by 
hi w fill  means,  as  by  deUvery  or  finding ;  and  the  second,  that  the  right 
of  property  onlj',  and  not  the  possession  of  it,  either  really  or  con- 
structively, is  in  the  person  bringing  it.  The  prisoner  received  this 
note  by  the  permission  and  consent  of  the  prosecutors,  while  it  was 
passing  from  1J^  possession  of  Mr.  Gilbert  to  the  possession  of  Messrs. 
Esdaile's  and  Hammett's  ;  and  not  having  reached  its  destined  goal,  but 
having  been  thus  intercepted  in  its  transitory  state,  it  is  clear  that  it 
never  came  to  the  possession  of  the  prosecutors.  It  was  delivered  into 
the  possession  of  the  prisoner,  upon  an  implied  confidence  on  the  part  of 
the  prosecutors  that  he  would  deliver  it  over  into  their  possession,  but 
which,  from  the  pressure  of  temporary  circumstances,  he  neglected  to  do. 
At  the  time,  therefore,  of  the  supposed  conversion  of  this  note,  it  was  in 
the  legal  possession  of  the  prisoner.  To  divest  the  prisoner  of  this  pos- 
session, it  certainly  was  not  necessary  that  he  should  have  delivered  this 
note  into  the  hands  of  the  prosecutors,  or  of  any  other  of  their  servants 
personally  ;  for  if  he  had  deposited  it  in  the  drawer  kept  for  the  recep- 
tion of  this  species  of  propert}',  it  would  have  been  a  delivery  of  it 
into  the  possession  of  his  masters ;  but  he  made  no  such  deposit,  and 
instead  of  determining  in  any  way  his  own  possession  of  it,  he  con- 
veyed it  immediately  from  the  hand  of  Mr.  Gilbert's  clerk  into  his  own 
pocket.  Authorities  are  not  wanting  to  support  this  position.  In  the 
Year-book,  7  Hen.  6  fol.  43,  it  is  said,  ''  If  a  man  deliver  goods  to 
another  to  keep,  or  lend  goods  to  another,  the  deliverer  or  lender  may 
commit  felony  of  them  himself,  for  he  hath  but  jus  proprietatis  ;  the 
jus  jjossessionis  being  with  the  bailee  ;  "  and  permitting  one  man  to 
receive  goods  to  the  use  of  another,  who  never  had  any  possession  of 
them,  is  a  stronger  case.  So  long  ago  as  the  year  1687,  the  following 
case  was  solemnly  determined  in  the  Court  of  King's  Bench  on  a  special 
verdict :  The  prisoner  had  been  a  servant,  or  journeyman,  to  one  John 
Fuller,  and  was  employed  to  sell  goods  and  receive  money  for  his 
master's  use  ;  in  the  course  of  his  trade  he  sold  a  large  parcel  of  goods  ; 
received  one  hundred  and  sixty  guineas  for  them  from  the  purchaser ; 
deposited  ten  of  them  in  a  private  place  in  the  chamber  where  he  slept ; 
and,  on  his  being  discharged  from  his  service,  took  away  with  him  the 
remaining  one  hundred  and  fifty  guineas  ;  but  he  had  not  put  any  of 
the  money  into  his  master's  till,  or  in  any  way  given  it  into  his  possess- 
sion.  Before  this  embezzlement  was  discovered  he  suddenly  decamped 
from  his  master's  service,  leaving  his  trunk,  containing  some  of  his 
clothes  and  the  ten  guineas  so  secreted  behind  him  ;  but  he  afterwards, 
in  the  night-time,  broke  open  his  master's  house,  and  took  away  with 
him  the  ten  guineas  which  he  had  hid  privately  in  his  bed-chamber ; 
and  this  was  held  to  be  no  burglary,  because  the  taking  of  the  money 
was  no  felony :  for  although  it  was  the  master's  money  in  right,  it  was 
the  servant's  money  in  possession,  and  the  first  original  act  no  felony. 
This  case  was  cited  by  Sir  B.  Shower,  in  his  argument  in  the  case  of 


534  bazeley's  case.  [chap.  viii. 

Rex  V.  Meers,  and  is  said  to  be  reported  by  Gouldsborough,  186  ;  but 
I  have  been  favored  witli  a  manuscript  report  of  it,  extracted  from  a 
collection  of  cases  in  the  possession  of  the  late  Mr.  Reynolds,  Clerk  of 
the  Arraigns,  at  the  Old  Bailey,  under  the  title  of  Rex  v.  Dingley,  by 
which  it  appears  that  the  special  verdict  was  found  at  the  Easter 
Session,  1G87,  and  argued  in  the  King's  Bench  in  Hilary  Term,  3  Jac. 
II.,  and  in  which  it  is  said  to  have  been  determined  that  this  offence 
was  not  burglary,  but  trespass  only.  The  law  of  this  case  has  been 
recently  confirmed  by  the  case  of  the  King  v.  Bull.  The  prisoner, 
Thomas  Bull,  was  tried  at  the  Old  Bailey,  January  Session,  1797, 
before  Mr.  Justice  Heath,  on  an  indictment  charging  him  with  having 
stolen,  on  the  7th  of  the  same  month,  a  half-crown  and  three  shillings, 
the  property  of  William  Tilt,  who  was  a  confectioner,  in  Cheapside, 
with  whom  the  prisoner  lived  as  a  journeyman  ;  and  Mr.  Tilt  having 
had,  for  some  time  before,  strong  suspicion  that  the  prisoner  had  robbed 
him,  adopted  the  following  method  for  the  purpose  of  detecthig  him : 
On  the  7th  January,  the  day  laid  in  the  indictment,  he  left  only  four  six- 
pences in  the  till ;  and  taking  two  half-crowns,  thirteen  shillings,  and 
two  sixpences,  went  to  the  house  of  Mr.  Garner,  a  watchmaker,  who 
marked  the  two  half-crowns,  several  of  the  shillings,  and  the  sixpences, 
with  a  tool  used  in  his  line  of  business,  that  impressed  a  figure  some- 
thing like  a  half-moon.  Mr.  Tilt,  having  got  the  money  thus  marked, 
went  with  it  to  the  house  of  a  Mrs.  Hill ;  and  giving  a  half-crown  and 
three  of  the  shillings  to  Ann  Wilson,  one  of  her  servants,  and  five  of 
the  shilUngs  and  the  other  sixpence  to  Mary  Bushman,  another  of  her 
servants,  desired  them  to  proceed  to  his  house,  and  purchase  some  of 
his  goods  of  the  prisoner,  whom  he  had  left  in  care  of  the  shop.  The 
two  women  went  accordingly  to  Mr.  Tilt's  shop,  where  Ann  Wilson 
purchased  confectionary  of  the  prisoner  to  the  amount  of  five  shillings 
and  three-pence,  gave  him  the  half-crown  and  three  shillings,  and  re- 
ceived three-pence  in  change  ;  and  Mar}-  Bushman  purchased  of  him 
articles  to  the  amount  of  four  shillings  and  sixpence,  for  which  she  paid 
him  out  of  the  moneys  she  had  so  received,  and  returned  the  other  shilling 
to  her  mistress,  Mary  Hill :  but  neither  of  these  women  observed  whether 
the  prisoner  put  either  the  whole  or  any  part  of  the  money  into  the  till 
or  into  his  pocket.  While  the  women,  however,  were  purcliasing  these 
things  Mr.  Tilt  and  Mr.  Garner  were  waiting,  with  a  constable,  at  a 
convenient  distance,  on  the  outside  of  the  shop-door :  and  wlien  they 
observed  the  women  come  out,  they  went  immediately  into  the  shop, 
where,  on  examining  the  prisoner's  pockets,  they  found  among  the 
silver  coin,  amounting  to  fifty-tln-ee  shillings,  which  he  had  in  his  waist- 
coat pocket,  the  marked  half-crowns,  and  three  of  the  marked  shillings, 
which  had  been  given  to  Wilson  and  Bushman  ;  only  seven  shillings 
and  sixpence  were  found  in  the  till ;  and  it  appeared  that  Mrs.  Tilt  had 
taken  one  shilling  in  the  shop  and  put  it  into  the  till  during  her  hus- 
band's absence  ;  so  that  the  two  shillings  which  had  been  left  therein 
in  the  morning,  the  one  shilling  which  Mrs.  Tilt  had  put  into  it,  the 


SECT.  II.]  BAZELEY'S    CASE.  535 

four  shillings  and  sixpence  laid  out  b}'  Mary  Bushman,  and  the  five 
shillings  and  sixpence  marked  money  which  was  found  in  the  prisoners 
pockef,  made  up  the  sum  which  ought  to  have  been  put  into  the  till.  The 
prisoner  upon  this  evidence  was  found  guilt}',  and  received  sentence  of 
truns[)ortation  ;  but  a  case  was  reserved  for  the  opinion  of  the  twelve 
judges.  Whether,  as  Mr,  Tilt  had  divested  himself  of  this  money  by 
giving  it  to  Mary  Hill,  who  had  given  it  to  her  servants  in  the  manner 
and  for  the  purpose  above  described,  and  as  it  did  not  appear  that  the 
prisoner  had  on  receiving  it  from  them,  put  it  into  the  till,  or  done  au}-- 
thing  with  it  that  could  be  construed  a  restoring  of  it  to  tlie  possession 
of  his  master,  the  converting  of  it  to  his  own  use  by  putting  it  into  his 
pocket  could  amount  to  the  crime  of  larcenj-,  it  being  essential  to  the 
commission  of  that  offence  that  the  goods  should  be  taken  from  the  pos- 
session of  the  owner ;  and,  although  no  opinion  was  ever  publicly 
delivered  upon  this  case,  the  prisoner  was  discharged.  After  these  de- 
terminations, it  cannot  be  contended  that  the  possession  of  the  servant 
is  the  possession  of  the  master  ;  for,  independent!}'  of  these  authorities, 
fhe  lule  that  the  possession  of  the  servant  is  the  possession  of  the 
master  cannot  be  extended  to  a  case  in  which  the  property  never  was 
in  the  master's  possession,  however  it  ma}-  be  so  construed  in  cases 
wh^re  the  identical  thing  stolen  is  delivered  by  the  master,  or  where  the 
question  is  between  the  master  and  a  third  person.  "  If,"  says  Sir  Mat- 
thew Hale,  "I  deliver  m}-  servant  a  bond  to  receive  money,  or  deliver 
goods  to  him  to  sell,  and  he  receives  the  mone}'  upon  the  bond  or 
goods  and  go  away  with  it,  this  is  not  felony  ;  for  though  the  bond 
or  goods  were  delivered  to  him  by  the  master,  yet  the  mone}-  was  not 
delivered  to  him  by  the  master."  But  he  admits,  that  "  if  taken  awa}* 
fi-om  the  servant  by  a  trespasser,  the  master  may  have  a  general  action 
of  trespass;"  which  shows  that  the  law,  in  a  criminal  case,  will  not, 
under  such  circumstances,  consider  the  master  to  have  a  constructive 
possession  of  the  property.  Such  a  possession  arises  by  mere  impli- 
cation of  law  ;  and  it  is  an  established  rule  that  no  man's  life  shall  be 
endangered  by  any  intendment  or  implication  whatsoever.^ 

The  judges,  it  is  said,  were  of  opinion  upon  the  authority  of  Rex 
V.  Waite,  that  this  bank-note  never  was  in  the  legal  custody  or  pos- 
session of  the  prosecutors,  Messrs.  Esdaile  and  Hammett ;  but  no 
opinion  was  ever  publicly  delivered  ;  and  the  prisoner  was  included  in 
tlie  Secretary  of  State's  letter  as  a  proper  object  for  a  pardon.^ 

1  The  .ir<?nment  for  the  prisoner  upon  the  other  points,  and  that  for  the  Crown 
are  omitted. 

2  On  consultation  amon<?  the  judges,  some  doubt  was  at  first  entertained;  but  at 
last  all  assembled  agreed  that  it  was"  not  felony,  inasmuch  as  the  note  was  never  m  the 
possession  of  the  bankers,  distinct  from  the  possession  of  the  prisoner  :  though  it  would 
have  been  otherwise  if  the  prisoner  had  deposited  it  in  the  drawer,  and  liad  afterwards 
taken  it.  ( VifJe  Chipchase's  case,  Leach,  699.)  And  they  thought  that  this  was  not 
to  be  differed  from  the  cases  of  Rex  v.  Waite,  Leach,  28,  and  Eex  v.  Bull,  Leach,  841, 
which  turned  on  this  consideration,  that  the  thing  was  not  taken  by  the  prisoner  out 
of  the  possession  of  the  owner ;  and  here  it  was  delivered  into  the  possession  of  the 


536  REGINA   V.    ROBINS,  [CHAP.  VIII. 


BEGIN  A  V.  ROBINS. 

Crown  Case  Reserved.     1854. 
[Reported  Dearsly  C.  C.  418.] 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal,  by  W.  H.  Bodkin,  Esq.,  sitting  for  the  Assistant 
Judge  of  the  Middlesex  Sessions. 

John  Robins  was  tried  at  the  Middlesex  Sessions,  in  September, 
1854,  upon  an  indictment  which  charged  him  with  stealing  five  quar- 
ters of  wheat,  the  property  of  his  masters,  George  Swaine  and 
another. 

Tlie  wheat  in  question  was  not  the  propert}^  of  the  prosecutors,  but 
part  of  a  large  quantity  consigned  to  their  care  and  deposited  at  one  of 
their  storehouses.  This  storehouse  was  in  the  care  of  Thomas  East- 
wick,  a  servant  of  the  prosecutors,  who  had  authorit}'  to  deliver  the 
wheat  onl}'  on  the  orders  of  the  prosecutors,  or  of  a  person  named 
Callow,   who  was  their  managing  clerk. 

It  was  proved  that  on  the  24th  of  June  the  prisoner,  who  was  a  ser- 
vant of  the  prosecutors  at  another  storehouse,  came  to  the  storehouse 
in  question  accompanied  b}'  a  man  with  a  horse  and  cart,  and  obtained 
the  ke}'  of  the  storehouse  from  Eastwick  by  representing  that  he,  the 
prisoner,  had  been  sent  by  the  managing  clerk  Callow  for  five  quar- 
ters of  wheat,  which  he  was  to  carry  to  the  Brighton  Railway.  East^- 
wick,  knowing  the  prisoner  and  believing  his  statement,  allowed  the 
wheat  to  be  removed,  the  prisoner  assisting  to  put  it  into  the  cart,  in 
which  it  was  conveyed  from  the  prosecutors'  premises,  the  prisoner 
going  with  it.  It  was  also  proved  that  Callow  had  given  no  such  au- 
thority, the  prisoner's  statement  being  entirely  false,  and  that  the  wheat 
was  not  taken  to  the  Brighton  Railway,  but  disposed  of,  with  the 
privity  of  the  prisoner,  by  other  parties  who  had  been  associated  with 
him  in  the  commission  of  the  offence. 

The  counsel  for  the  prisoner  contended  that  the  wheat  was  obtained 
by  false  pretences,  but  the  jury  were  directed,  if  they  believed  the 
facts,  that  the  offence  amounted  to  larceny,  and  they  found  the  pris- 
oner guilty  of  that  oflfence.  The  prisoner  was  sentenced  to  twelve 
months'  imprisonment,  and  is  now  confined  in  the  House  of  Correction 
at  Coldbath  Fields  in  execution  of  that  sentence.  I  have  to  ask  this 
Honorable  Court,  whether  the  verdict  was  right  in  point  of  law. 

This  case  was  argued  on  the  11th  of  November,  1854,  before  Jervis, 
C.  J.,  Alderson,  B.,  Coleridge,  J.,  Martin,  B.,  and  Crowder,  J. 


SECT.  II.]  REGINA   V.   ROBINS.  537 

Metcalfe,  for  the  prisoner.  In  this  case  the  prisoner  obtained  th« 
wheat  b}'  means  of  a  false  pretence,  and  was  not  guilt}-  of  larceny. 
Tlie  general  rule  is,  that  in  larceny  the  property  is  not  parttxl  with,  and 
in  false  pretences  it  is.  Here  Lhe  prosecutor  parted  witli  the  property 
in  the  wheat. 

Aldeksun,  B.  It  was  delivered  to  tlie  prisoner  for  a  special  purpose, 
namely,  to  be  taken  to  the  Brighton  Railway, 

Jekvis,  C.  J.  He  gets  the  key  by  a  false  pretence,  and  couiinits  a 
larceu}-  of  the  wheat. 

JJetca/fe.  Eastwick  had  tlie  sole  charge  of  the  wheat ;  and  although 
it  was  not  delivered  to  the  prisoner  by  the  hand  of  the  master,  the 
delivery  by  Eastwick  must  be  taken  to  be  a  delivery  by  the  master. 
The  decision  in  Regina  v.  Barnes,  2  Den.  C.  C.  59,  is  in  favor  of  this 
proposition.  There  the  chief  clerk  of  the  prisoner's  master,  on  tlie 
production  by  the  prisoner  of  a  ticket  containing  a  statement  of  a  pur- 
chase which,  if  it  had  been  made,  would  have  entitled  the  prisoner  to 
receive  2s.  '3d.,  but  which  purchase  had  not  in  fact  been  made,  paid 
the  prisoner  the  2s.  3d.,  and  it  was  held  that  the  prisoner  was  not  in- 
dictable for  larceny,  but  for  obtaining  money  under  false  pretences. 

Aluerson,  B.  That  is  simply  the  case  of  one  servant  being  induced 
to  give  the  property  of  the  master  to  another  servant  by  means  of  ft 
false  pretence  ;  but  here  the  property  remained  in  Swaine  throughout 
as  bailee.  Suppose  the  prisoner  had  been  really  sent  b\' Callow  and 
had  not  been  guilty  of  an}-  fraud,  but  on  his  way  to  the  railway  had 
been  robbed  of  the  wheat,  could  not  the  wheat  have  been  laid  in 
Swaine? 

Metcalfe.  Swaine  was  the  bailee  of  the  consignor ;  be  had  only  & 
special  propertv,  and  that  special  property  he  parted  with  to  the 
prisoner. 

Martin,  B.  For  the  purposes  of  this  case  Swaine  was  the  owner  ol 
the  wheat. 

Alderson,  B.  If  the  prisoner  had  told  the  truth,  and,  having 
obtained  the  wheat  without  making  any  false  pretence,  had  subse- 
quently dealt  with  it  as  he  has  done,  he  would  without  doubt  be 
guilty  of  larceny ;  and  can  it  be  said  that  he  is  not  guilty  of  larceny 
simply  because  he  told  a  falsehood? 

Sleigh,  for  the  Crown,  was  not  called  upon. 

Conviction  affirmed.^ 

1  Ace.  Eeg.  V.  Webb,  5  Cox  C.  C.  154;  State  v.  McCartey,  17  Minn.  76.  See  Eex 
V.  Jackson,  1  Moo.  C.  C.  119.  — Ed. 


538  HEX    V.    BASS.  [chap.  VIII. 


REX  V.   BASS. 
Crown  Case  Reserved.     1782. 

[Reported  Leach,  4ih  ed.,  251.] 

At  the  Old  Bailey,  in  May  Session,  1782,  William  Bass  was  convicted 
of  stealing  a  quantity  of  goods,  the  property  of  John  Gatfee. 

The  prisoner  was  servant  and  porter  in  the  general  employ  of  the 
prosecutor,  a  gauze  weaver  in  Bishopsgate  Street.  On  the  da}'  laid  in 
the  indictment  he  was  sent  witli  a  package  of  goods  from  his  master's 
house,  with  directions  to  deliver  them  to  a  customer  at  a  particular 
place.  In  his  way  he  met  two  men,  who  invited  him  into  a  public 
house  to  drink  with  them,  and  then  persuaded  him  to  open  the  package 
and  sell  the  goods  to  a  person  whom  one  of  the  men  brought  in,  which 
he  accordingly  did,  by  taking  them  out  of  the  package  and  putting 
them  into  the  man's  bag ;  and  he  received  eight  guineas  of  the  produce 
to  his  own  use.^ 

It  was  referred  to  the  consideration  of  the  twelve  judges,  whether 
from  the  above  facts,  the    prisoner  was  guilty-  of  a  felonious  taking. 

Mr.  Baron  Hotham,  in  December  Session,  1782,  delivered  it  as  the 
unanimous  opinion  of  all  the  judges,  that  the  conviction  was  proper ; 
for  the  prisoner  standing  in  the  relation  of  a  servant,  the  possession  of 
the  goods  must  be  considered  as  remaining  in  the  master  until  and 
at  the  time  of  the  unlawful  conversion  of  them  bj-  the  prisoner.  The 
master  was  to  receive  the  money  for  them  from  the  customer,  and  he 
could  at  any  time  have  countermanded  the  deliver}-  of  them.  The 
prisoner,  therefore,  by  breaking  open  the  package,  tortiously  took  tliem 
from  the  possession  of  the  owner,  and  having  by  the  sale  converted 
them  anm\o  furandi  to  his  own  use,  the  taking  is  felonious. 

Many  cases  of  this  kind  have  occurred,  and  all  of  them  have  been 
determined  to  be  felony. 

prisoner.  That  although  to  many  purposes  the  note  was  in  the  actual  possession  of 
the  masters,  yet  it  was  also  in  the  actual  possession  of  the  servant,  and  that  possession 
not  to  be  impeached ;  for  it  was  a  lawful  one.  Eyre,  C.  J.,  also  observed  that  the 
cases  ran  into  one  another  very  much,  and  were  hardly  to  be  distinguished  ;  that  in 
the  case  of  Kex  v.  Spears,  Leach,  825,  the  corn  was  in  the  possession  of  the  master 
under  the  care  of  the  servant :  and  Louo  Kenton  said  that  he  relied  much  on  the  Act 
of  Parliament  respecting  the  Bank  not  going  further  than  to  protect  the  Bank.  2  East, 
C.  L.  574.  — Rep. 

1  "  It  was  further  mentioned  as  an  additional  circumstance,  that  the  goods  were 
taken  out  of  the  package  in  which  they  had  been  delivered  to  the  prisoner,  and  put 
into  a  bag  at  the  public  house."     2  East  P.  C.  566.  —  Ed. 


SECT.  IL]  rex    V.   LA.VENDEK.  539 


REX   V.   WATSON. 

Crown  Case  Reseuved.     1788. 

[Reported  2  East  P.  C.  562.] 

William  Watson  was  tried  on  an  indictment  containing  three  counts  : 
the  first  stating,  that  tlie  prisoner,  as  a  servant,  received  £3  18s.,  the 
money  of  E.  Cowper,  his  hite  master,  which  was  delivered  to  hira  safel}' 
to  keep  to  the  use  of  his  said  master ;  and  that  afterwards  tlie  said 
prisoner  witlidrew  himself  from  his  master  with  the  money,  with  an 
intent  to  steal  the  same,  and  to  defraud  his  said  master  thereof.  The 
second  count  stated  that  tlie  prisoner,  having  received  the  said  money 
in  the  manner  above  stated,  and  being  witli  his  master,  had  converted 
the  same  to  his  own  use  ;  and  both  concluded  against  the  form  of  the 
statute.  The  third  count  vvas  for  larceny  generally.  It  appeared  that 
Cowper,  who  was  a  surrogate,  had  sent  the  prisoner,  who  was  his  ser- 
vant, to  buy  some  blank  licenses,  and  had  delivered  him  the  £3  18s. 
for  that  purpose  ;  but  the  prisoner  ran  awa}'  with  the  money,  and  being 
convicted,  a  question  was  reserved  for  the  opinion  of  the  judges,  whether 
the  evidence  supported  any  of  the  counts.  And  in  Easter  Term,  1788, 
all  the  judges  but  the  Chief  Baron  held  that  this  case  was  not  within 
the  statute,  for  to  keejj  means  to  keep  for  the  use  of  the  master,  and  to 
return  to  him.  As  to  the  count  for  larcenj',  all  the  judges  held  this 
could  not  be  felon}'  at  common  law  ;  for  to  make  it  felony  there  must 
Be' some  act  done  by  the  prisoner,  a  fraudulent  obtaining  of  the  possesi 
sion,  with  intent  to  steal.  '  ^ 


REX   V.    LAVENDER. 
Crown  Case  Reserved.     1793. 

[Reported  2  East  P.  C.  566.] 

John  Lavender  was  indicted  for  larceny  at  common  law  of  a  certain 
sum  of  money  belonging  to  John  Edmonds.  The  prisoner  was  a  ser- 
vant to  Edmonds,  who  had  delivered  him  the  money  in  question  to 
carry  to  the  house  of  one  Thomas  Flawn,  and  there  to  leave  the  same 
with  him,  he  having  agreed  to  give  Edmonds  bills  for  the  mone}'  in  a 
few  days.  The  prisoner  did  not  carr}'  the  money  to  Flawn  as  directed, 
but  went  awa}'  with  it,  purchased  a  watch  and  other  things  with  part, 
and  part  remained  in  his  possession  when  he  was  apprehended.  Being 
found  guilt}',  sentence  was  respited  for  the  opinion  of  the  judges, 
whether  this  were  a  felon}'  or  a  breach  of  trust ;  and  in  Easter  Term, 
1793,  all  the  judges  held  this  was  a  felony,  and  that  the  last  point  in 
Watson's  case  above  referred  to  was  not  law.     In  Trinitv  Term  follow 


540  REGINA   V.   TOLLETT   AND   TAYLOR.  [CHAP.  VIII. 

ing  this  case  was  again  under  the  consideration  of  the  judges,  when 
the}'  adhered  to  their  former  opinion,  and  some  said  that  the  distinc- 
tion between  this  case  and  Watson's,  if  there  were  an}-,  was,  that  in 
Watson's  case  the  money  was  not  delivered  to  the  prisoner  to  be  paid 
specifically  to  any  other  person  ;  but  if  the  prisoner  had  laid  out  his 
own  money  to  the  same  amount  in  buying  licenses,  it  would  have  been 
a  compliance  with  the  order.  He  was  commissioned  to  merchandise 
with  the  money.  But  they  admitted  that  the  distinction,  if  any,  was 
extremely  nice,  and  Bdller,  J.,  thought  there  was  none,  and  recog- 
nized the  case  of  R.  v.  Paradice,  before  Gould,  J.,  as  good  law.^ 


REGINA   V.   TOLLETT  AND   TAYLOR. 
Oxford  Assizes.     184L 

[Reported  Carrington  ^^  Marshman,  112.] 

Coleridge,  J.^  (in  summing  up).  There  is  no  doubt  that  the  prop- 
erty found  in  the  possession  of  the  prisoner  at  Abingdon  was  the 
property  of  the  prosecutor  Henry  Eltham,  and  that  it  was  taken  from 
his  house  on  the  night  of  Saturday,  the  31st  of  October,  and  that  it 
was  found  at  Abingdon  in  the  same  state  in  which  it  was  taken  ;  and 
it  seems  also  to  be  clear  that  neither  of  the  prisoners  was  in  possession 
of  the  keys  which  unlocked  the  boxes.  With  respect  to  the  prisoner 
Tollett,  I  think  that  the  evidence  is  insufficient  to  affect  him  as  a  prin- 
cipal. The  evidence,  as  it  affects  the  other  prisoner,  is  therefore  that 
which  you  will  principally  have  to  attend  to.  It  is  proved  by  the 
prosecutor,  that  he  and  his  wife  had  been  upon  bad  terms,  and  that 
she  had  threatened  to  leave  him  and  go  to  service  ;  and  the  wife  herself 
says  that  she  twice  met  the  prisoner  Taylor  at  Mrs.  Hayward's,  which 
she  does  not  know  to  be  a  house  of  ill  fame,  and  there  arranged  with 
the  prisoner  Taylor  that  she  should  elope  with  him,  and  that  they 
should  live  at  Gloucester  as  man  and  wife.  She  says  that  on  these 
two  occasions  she  was  with  the  prisoner  in  a  bedroom  for  half  an  hour 
each  time,  but  that  nothing  improper  passed  between  them  ;  she  also 
says  that  the  prisoner  Taylor  desired  her  to  bring  all  the  money  she 
could,  and  that  she  was  to  get  the  money  and  the  boxes  ready  on  the 
Saturday  night,  and  he  would  come  for  them  and  take  her  away  with 
him  also.  She  further  states  that  she  sat  up  after  her  husband  had 
gone  to  bed,  in  expectation  of  his  coming  ;  that  he  did  come,  and  that 
she  took  him  into  the  room  in  which  her  husband  was  asleep,  and 
that  he  took  the  boxes  away  in  the  cart  of  the  other  prisoner,  Tollett, 
and  that  if  her  husband  had  remained  asleep  she  would  have  gone  off 

1  Ace.  State  v.  Schingen,  20  Wis.  74.  —  Ed. 

'^  The  charge  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.  II.]  KEGINA   V.   TOLLETT   AND    TAYLOR.  541 

with  the  prisoner  Taylor ;  but  as  her  husband  awoke  she  was  obliged 
to  stay,  and  she  gave  information  which  led  to  the  apprehension  of  the 
prisoners  at  Abingdon.  Now,  by  law  there  is  such  a  unity  of  interest 
between  husband  and  wife,  that  ordinarily  the  wife  cannot  steal  the 
goods  of  the  husband,  nor  can  an  indifferent  person  steal  the  goods  of 
the  husband  bj-  the  delivery  of  them  by  the  wife.  If,  therefore,  the 
prisoner  Taylor  had  been  an  indifferent  person,  and  the  wife  of  the 
prosecutor  had  delivered  this  mone}-  and  these  goods  to  him  to  convert 
to  his  own  use,  that  would  in  point  of  law  have  been  no  larceny.^  But 
if  the  pei'son  to  whom  the  goods  are  delivered  by  the  wife  be  an  adul- 
terer, it  is  otherwise,  and  an  adulterer  can  be  propei-ly  convicted  of 
stealing  the  husband's  goods,  though  they  be  delivered  to  him  by  the 
wife.  On  this  evidence,  it  does  not  appear  that  the  criminal  purpose 
had  been  carried  into  eflect ;  but  if  that  criminal  purpose  had  not  been 
completed,  and  these  goods  were  removed  by  the  wife  and  the  prisoner 
Taylor  with  an  intent  that  she  should  elope  with  him  and  live  in  adul- 
ter}'  with  him,  I  shall  direct  3'ou  in  point  of  law  that  the  taking  of  them 
was  a  larceny.  Mr.  Carrington  has  said  that  if  the  wife  eloped  with 
an  adulterer,  it  would  be  no  larcen}'  in  the  adulterer  to  assist  in  carry- 
ing awa}-  her  clothes.  I  do  not  agree  with  him,  for  I  think  that  if  she 
elopes  with  an  adulterer,  who  takes  her  clothes  with  them  it  is  larceny 
to  steal  her  clothes,  which  are  her  husband's  property,  just  as  much  as 
it  would  be  a  larceny  to  steal  her  husband's  wearing  apparel,  or  an}'- 
thing  else  that  was  his  property.  However,  the  evidence  in  this  case 
goes  further  than  that ;  for  it  is  proved  that  the  prisoner  told  her  to 
bring  with  her  all  the  money  that  she  could,  and  a  sum  of  money  is 
contained  in  one  of  the  boxes.  Mr.  Carrington  also  contends  that, 
except  on  the  evidence  of  the  wife,  there  is  no  proof  that  the  prisoner 
Ta\'lor  was  anything  more  than  a  friend  ;  and  if  there  was  a  larceny  in 
the  stealing  of  these  goods,  the  wife  is  an  accomplice,  and  requires  con- 
firmation. Taking  that  to  be  so,  we  find  that  she  is  confirmed  as  to  all 
the  main  facts  of  the  case  ;  and  she  certainly  appears  to  have  no  motive 
to  blacken  her  own  character ;  and  it  seems  reasonable,  therefore,  to 
believe  her  as  to  the  criminal  intention  on  her  part.  Mr.  Carrington 
also  says  that  the  conduct  of  the  two  prisoners  was  not  that  of  thieves, 
as  they  stayed  at  Abingdon,  where  they  were  known  ;  and  that  certainly 
ought  to  weigh  in  favor  of  the  prisoners.  It  is  also  said  that  they  did 
not  break  bulk  ;  but  I  think  that  that  does  not  amount  to  much,  because, 
if  the  scheme  was  for  the  wife  of  the  prosecutor  to  live  with  the  prisoner 
Taylor  at  Gloucester,  there  would  be  no  object  in  opening  the  boxes  at 
Abingdon.  It  is  further  said  that  Taylor  did  not  know  what  was  in 
the  boxes.  However,  if  a  man  take  away  any  property  at  all  belonging 
to  another,  having  arranged  to  elope  with  the  wife  of  that  other,  and 
having  told  the  wife  to  bring  all  the  money  she  could,  it  will  be  for  you 
to  say  whether  he  did  not  intend  to  steal  the  property  thus  taken  away, 

1  Ace.  Lamphier  r.  State,  70  Ind.  317,  semhle.  — Ed. 


542  KEGINA    V.    NORVAL.  [CHA.P.  VIII. 

though  he  might  not  at  the  time  of  the  taking  know  exactly  of  what  the 
property  consisted.  If  you  are  satisfied  that  the  prisoner  Taylor  took 
any  of  tlie  husband's  property,  there  then  being  a  criminal  intention,  or 
there  having  been  a  criminal  act  between  that  prisoner  and  the  wife,  it 
is  a  larceny-,  and  you  ought  to  find  the  prisoner  guilt}- ;  bui  if  you  think 
that  the  prisoner  took  away  the  boxes  merely  to  get  the  wife  away  as  a 
friend  only,  and  without  any  reference  to  any  criminal  connection  be- 
tween the  prisoner  and  the  wife,  either  actual  or  intended,  you  ought  to 
acquit  him. 

Tlie  jurj-  found  the  prisoner  Taylor  guilt}',  and  the  prisoner  Tollett 
not  guilt\'.^ 


REGINA   V.   NORVAL. 
Central  Criminal  Court.     1844. 

[Reported  1  Cox  C.  C.  95.] 

The  prisoners  were  indicted  for  feloniouslj'  stealing  certain  deer- 
horns,  the  property  of  one  Kirkman. 

It  appeared  in  evidence  that  the  prisoner  Norval  w-as  in  tlie  employ 
of  Kirkman,  who  was  a  carman.  The  goods  in  question  were  lying  in 
the  docks,  and  the  owner  delivered  to  Kirkman  the  dock  warrants,  in 
order  that  he  might  receive  them  and  cart  them  up  to  town.  Kirkman 
accordingly  gave  the  warrants  to  the  prisoner  Norval,  with  the  neces- 
sary instructions,  and  he  (Norval)  went  with  a  cart  to  the  docks,  the 
deer-horns  were  put  into  it,  and  on  the  passage  back  to  London  several 
of  them  were  abstracted,  Norval  colluding  with  the  other  prisoner  for 
that  purpose. 

Ballantine^  for  the  prisoner  Norval,  contended,  that  upon  this  state 
of  facts  the  charge  should  have  been  one  of  embezzlement  as  against 
him,  and  not  one  of  felony.  The  goods  had  never  been  in  the  master's 
possession.  The  prisoner  obtained  them  lawfully  in  the  first  instance, 
so  that  there  could  be  no  tortious  taking,  which  was  an  essential  ingre- 
dient in  the  proof  of  felon}'. 

Mr.  Commissioner  Bullock  consented  to  reserve  the  point,  and  the 
prisoner  was  convicted. 

The  learned  commissioner  subsequent^  stated  that  he  had  consulted 
Mr.  Baron  Gurney  on  the  subject,  who  was  of  opinion  that  the  con- 
viction was  proper.  True  it  is  that  the  making  awa}'  by  a  servant  with 
goods  that  have  never  been  in  the  possession  of  the  master,  is  embez- 
zlement ;  but  here  there  is  a  constructive  possession,  and  that  accrued 
at  the  moment  when  the  goods  were  placed  in  the  master's  cart. 

1  Ace.  Rex  V.  Willis,  1  Moody  C.  C.  375 ;  Reg.  v.  Classic,  7  Cox  C.  C.  1  ;  Reg.  v 
Kenny,  13  Cox  C.  C.  397  ;  People  r.  Schuyler,  6  Cow.  572.  —  Ed. 


1 


SECT.  IT.]  EEGINA    V.   KEED.  543 

REGTNA  V.   REED. 
Ckown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  284.] 

The  following  case  was  reserved  b}-  the  Court  of  Quarter  Sessions 
for  the  count}'  of  Kent. 

At  the  General  Quarter  Sessions  of  the  Peace  for  the  county  of  Kent, 
holden  at  Maidstone,  on  the  4th  January,  1853,  before  Aretus  Akers, 
Edward  Burton,  and  James  Espinasse,  Esqrs.,  justices  appointed  to  try 
prisoners  in  a  separate  court,  Abraham  Reed  was  tried  upon  an  idict- 
ment  for  felonioush'  stealing  200  lbs.  weight  of  coals,  the  property  of 
William  Newton,  his  master,  on  the  6th  December,  1852  ;  and  James 
Peerless  was  charged  in  the  same  indictment  with  receiving  the  coals, 
knowing  the  same  to  have  been  stolen,  and  was  acquitted. 

The  evidence  of  the  prosecutor,  William  Newton,  was  as  follows  :  — 
"I  am  a  grocer  and  miller,  at  Cowden,  and  sell  coals  b}'  retail.  The 
prisoner,  Reed,  entered  my  service  last  jear,  about  three  weeks  before 
the  6th  December.  On  that  da}-  I  gave  him  directions  to  go  to  a  cus- 
tomer to  take  some  flour,  and  thence  to  the  station  at  Edenbridge,  for 
12cwt.  of  coals.  I  deal  with  the  Medwa}'  Companv,  who  have  a  wharf 
there,  Holman  being  wharfinger.  I  told  Reed  to  bring  the  coals  to  m}' 
house.  Peerless  lives  about  500  yards  out  of  the  road  from  the  station 
to  my  house.  Reed  went  about  nine  a.m.,  and  ought  to  have  come 
back  between  three  and  four  p.  m.  ;  but  as  he  had  not  come  back,  I 
went  in  search  of  him  at  half-past  six,  and  found  him  at  Peerless's, 
The  cart  was  standing  in  the  road  opposite  the  house,  and  the  two 
prisoners  were  taking  coals  from  the  cart  in  a  truck  basket.  It  was 
dark.  I  asked  Reed  what  business  he  had  there  ;  he  said,  '  to  deliver 
half  a  hundredweight  for  which  he  had  received  an  order  from  Peer- 
less.' Reed  had  never  before  told  me  of  such  an  order,  and  had  no 
authorit}'  from  me  to  sell  coals.  Later  that  evening  I  went  and  asked 
Peerless  what  coals  he  had  received  from  my  cart ;  he  said,  half  a  hun^ 
dredweight.  I  then  asked  him  how  thej- were  carried  from  the  cart; 
he  said,  in  a  sack.  I  weighed  the  coals  when  brought  home,  and  found 
the  quantit}'  so  brought  a  quarter  of  a  hundredweight  and  four  pounds 
short.  I  went  to  Peerless's  next  day  and  found  some  coals  there, 
apparently  from  half  to  three  quarters  of  a  hundredweight."  Upon  his 
cross-examination  he  stated  as  follows:  "  I  believe  Peerless  had  some- 
times had  coals  from  me.  When  I  came  up  they  were  shutting  the  tail 
of  the  cart,  but  some  coals  were  in  a  truck-basket  at  their  feet.  Reed 
said  at  once  that  he  had  received  an  order  from  Peerless.  It  was  two 
hours  later  when  I  asked  Peerless,  and  when  he  said  he  had  ordered 
them.  Reed  said  he  had  carried  two  hundredweight  in,  but  that  was 
two  hours  after."  On  his  re-examination  he  said:  "I  think  Peerless 
had  had  some  coals  from  me  about  a  fortnisrht  before  the  6th."     James 


544  REGINA    V.   REED.  [CHAP.  VIII. 

Holman,  another  witness  for  the  prosecution,  said  :  "I  am  wharfinger 
to  the  Medwa}'  Compan}',  at  the  Edenbridge  station,  and  Newton  deals 
there  for  coals.  Reed  came  on  the  6th  December,  and  asked  for  half  a 
ton  for  Newton,  and  I  supplied  him.  I  entered  them  at  the  time  to 
Newton,  and  now  produce  the  book  with  the  entry."  James  Handle3', 
another  witness  for  the  prosecution,  said,  "  I  am  superintendent  of  the 
Sevenoaks  division.  On  the  7th  December,  I  went  to  Peerless's,  and 
asked  him  how  much  coals  he  had  received  from  Reed  ;  he  said  he  had 
ordered  half  a  hundredweight  three  weeks  before  ;  Reed,  when  I  asked 
him  afterwards,  said,  three  days  before  ;  Reed  said  he  had  received 
two  glasses  of  wine  from  Peerless."  On  his  cross-examination,  he 
said,  "This  was  about  four  p.  m.,  7th  December."  Newton  was  then 
re-examined  and  said  :  "  Reed  came  to  me  in  the  morning  of  the  7th  : 
I  told  liim  2|  cwts.  were  missing.  He  then  said  one  sack  had  been 
left  at  the  wharf  b}'  mistake  ;  I  therefore  charged  him  with  onh'  three- 
quarters  of  a  hundredweight."  Holman,  upon  re-examination,  said: 
"  Reed  left  a  sack  behind  him  ;  but  it  was  an  empty  one.''  This  being 
the  case  for  the  prosecution,  Mr.  Ribton,  counsel  for  the  prisoner,  sub- 
mitted that  there  was  no  case  to  go  to  the  jury  on  the  charge  of  larcenj-, 
inasmuch  as  the  coals  left  at  Peerless's  had  never  been  in  the  possession 
of  Newton,  the  master.  Mr.  Rose,  counsel  on  the  part  of  the  prosecu- 
tion, contended  that  the  coals  were  constructively  in  the  possession  of 
Newton,  and  that  the  offence  was  properly  charged  as  larceny  ;  but  that, 
under  the  provisions  of  the  act  14  &  15  Vict.  c.  100,  s.  13,  it  was  imma- 
terial whether  the  offence  were  larcen}'  or  embezzlement,  as  the  jury 
might  find  a  verdict  either  for  larceny-  or  embezzlement.  Mr.  Ribton 
then  proposed  that  it  should  be  left  to  the  jurj'  as  a  charge  of  embezzle- 
ment ;  but  to  this  Mr.  Rose  objected,  on  the  ground  that  the  receiver 
must  then  be  acquitted.  The  court  were  of  opinion  that  there  was  a 
constructive  possession  in  the  master,  and  left  the  case  to  the  jur}'  as  a 
case  of  larceny  upon  the  evidence,  who  thereupon  found  the  prisoner, 
Abraham  Reed,  guilt}'.  Mr.  Ribton  then  applied  to  the  court  to  sub- 
mit the  case  to  the  Court  of  Criminal  Appeal,  contending  that  the 
conviction  was  wrong  in  law  ;  as,  if  any  offence  had  been  committed,  it 
was  embezzlement,  and  not  larceny.  The  court  acceded  to  the  appli- 
cation, and  respited  judgment,  and  discharged  Reed,  upon  his  entering 
into  recognizances  —  himself  in  £20,  and  one  surety  in  £20  —  to  receive 
judgment  at  the  next  Court  of  Quarter  Sessions  for  Kent. 

This  case  was  first  argued  on  the  23d  April,  1853,  before  Jervis, 
C.  J.,  Parke,  B.,  Alderson,  B.,  Wightman,  J.,  and  Cresswell,  J., 
when  the  court  took  time  to  consider  their  judgment.  The  court 
afterwards  directed  that  the  case  should  be  argued  before  all  the  judges  ; 
and,  in  pursuance  of  that  direction,  the  case  was  again  heard  on  the 
19  th  November,  1853. 

Blbtoyi,  for  the  prisoners.  The  conviction  is  wrong.  To  constitute 
larceny  there  must,  according  to  all  the  definitions  of  that  offence,  be  a 
taking  from  the  possession  of  the  owner.     Formerly,  it  was  supposed 


SECT.  II,"]  REGINA    V.    KEED.  545 

that  the  taking  must  be  out  of  the  actual  possession  of  the  owner,  as 
appears  by  the  recital  of  the  earliest  Embezzlement  Act  (21  Hen.  VIII. 
c.  7),  which  was  passed  to  provide  for  the  punishment  of  servants  con- 
verting goods  or  money  entrusted  to  their  keeping  by  their  masters 
(Dalton's  Country  Justice,  496)  ;  but  it  is  now  settled  that  the  posses- 
sion maj'  be  either  actual  or  constructive.  In  either  case  the  taking 
constitutes  a  trespass,  which  is  essential  to  larceny.  Qonstructive  pos- 
session is  of  two  kinds  :  first,  where  property  has  been  given  by  the 
master  to  the  servant  for  a  special  purpose,  or  is  put  under  the  ser- 
J^Lnl!a-chai:ge  or  custody;  secondh',  where  a  third  person  has  given 
.goods  to^the  servant,  and  the  servant  has  determined  his  own  exclusive 
possession  b}'  some  act  which  vests  the  possession  in  the  master.  The 
constructive  possession  in  this  case,  if  anj^,  was  of  the  second  kind  ;  but 
there  was,  in  truth,  no  possession  b}'  the  master  at  all. 

Parke,  B.  If  the  goods  were  the  propert}-  of  the  master  before  the 
deliver}'  of  them  to  the  servant,  an}'  act  wliereb}'  they  are  reduced  into 
the  master's  possession  is  sufficient. 

Mibtoyi.  Yes  ;  but  not  a  mere  right  to  the  actual  possession.  The 
criterion  is,  whether  the  goods  have  reached  the  place  of  their  ultimate 
destination  ?  The  distinction  is  between  the  actual  possession  and  the 
right  to  the  actual  possession.  In  Waite's  case  (1  Leach,  28  ;  2  East 
P.  C.  570),  a  cashier  of  the  Bank  of  England  abstracted  an  India  bond  ; 
but,  as  the  bond  had  not  been  previously  placed  by  him  in  the  cellar  of 
the  bank,  the  place  of  its  ultimate  destination,  the  act  was  held  to  be 
not  one  of  larceny.  So,  in  the  present  case,  the  act  is  not  one  of  lar- 
cen}',  because  the  coals,  though  the  master  had  a  right  to  the  possession 
of  them,  had  not  reached  the  place  of  their  final  deposit.  In  R.  v. 
Bazeley  (2  Leach,  835  ;  2  East  P.  C.  571),  money  was  received  by  a 
banker's  clerk  at  the  counter,  and,  instead  of  putting  it  into  the  proper 
drawer,  he  purloined  it ;  and  that  was  held  not  to  be  larceny,  because  as 
against  him  there  was  no  possession  by  the  master.  [Lord  Campbell, 
C.  J.  —  On  the  former  argument,  my  brother  Parke  suggested  that  that 
was  money,  the  subject  of  account.  Platt,  B.  —  Suppose  it  to  be  the 
dut}'  of  the  clerk  to  put  the  money  into  a  drawer  and  lock  it  up,  must 
the  drawer  be  pushed  home  and  locked  up  before  the  money  has  got 
into  the  possession  of  the  master?]  The  drawer  on  the  premises  of  the 
master  is  the  ultimate  place  of  deposit.  [Lord  Campbell,  C.  J.  —  Sup- 
pose that  the  servant  leaves  the  horse  and  cart  on  the  road  ;  has  he  then 
determined  his  dut}',  so  that  if  he  comes  back  he  ma}'  steal  them  ?]  If 
he  had,  it  would  be  embezzlement.  R.  v.  Bull,  2  Leach,  841  ;  R.  v. 
Poorer,  cited  in  R.  v.  Meeres,  1  Show.  50  ;  R.  v.  Walsh,  4  Taunt. 
258,  276;  R.  &  R.  215;  2  East  P.  C.  177;  and  R.  v.  Spears  there 
cited.  [Lord  Campbell,  C.  J.  —  In  the  report  in  4  Taunt.  276, 
Heath,  J.,  says,  "  That  case  went  upon  the  ground  that  the  corn  was 
in  the  prosecutor's  barges,  which  was  the  same  thing  as  if  it  had  been 
in  his  granarv."]  The  report  in  East  is  not  so.  He  also  cited  R.  y. 
SuUens,  1  Moo.  C.  C.   129,  and  R.  v.  Masters,  8  Cox  Crim.  Cas.  178; 


546  EEGINA  V.  EEED.  [CHAP.  VIII. 

1  Den.  332.  [Pollock,  C.  B.  —  Suppose  he  had  had  to  take  the  coals 
to  a  customer  at  once.  How  would  it  be  then?  In  respect  to  the 
master,  the  cart  would  be  the  final  place  of  deposit.]  The  customer's 
house  would  have  been  the  final  place  of  deposit.  [Lord  Campbell, 
C.  J.  —  How  do  you  define  the  place  of  final  deposit?]  That  depends 
on  the  particular  circumstances  of  each  case.  In  this  one,  for  instance, 
it  is  the  house  of  the  master.  [Lord  Campbell,  C.  J.  —  When  the 
coals  passed  the  threshold,  or  the  cart  passed  the  gate?  A  farm-house 
is  at  the  extreniit}'  of  a  field  ;  does  the  constructive  possession  cease  at 
the  gate  of  the  field,  or  at  the  door  of  the  house  ?  Platt,  B.  —  The  cart 
was  in  the  possession  of  the  master.  If  he  had  taken  that,  it  would 
have  been  larceny.  Parke,  B.  —  The  cart  is  but  the  means  of  transit  to 
the  master's  house,  which  was  the  ultimate  place  of  destination.]  In 
R.  V.  Hayward  (1  Car.  &  K.  518)  straw  thrown  down  at  a  stable  door 
was  considered  to  have  reached  a  place  of  final  deposit.  If  a  banker's 
clerk  collects  bills,  puts  them  into  his  pocket,  and  abstracts  one,  the 
propert}'  of  his  master,  which  he  afterwards  converts  to  his  own  use, 
that  is  embezzlement,  not  larceny.  [Jervis,  C.  J.  —  How  do  30U  distin- 
guish the  cases  of  R.  v.  Spears  and  R.  v.  Abrahat  (2  Leach,  828)? 
Lord  Campbell,  C.  J. — R.  v.  Spears  is  on  all-fours  with  this  case. 
Parke,  B.  —  In  R.  v.  Spears  it  is  uncertain,  looking  at  the  reports  in 
East  and  Leach,  and  the  difference  between  the  two  editions  of  Leach, 
whether  the  judgment  did  not  turn  on  the  fact  that  the  master  had 
bought  the  whole  cargo.]  In  that  case  the  master  would  have  had  a 
title  and  constructive  possession  before  delivery  to  the  prisoner. 

Rose,  contra.  The  act  of  the  prisoner  was  an  offence  at  common 
law.  The  embezzlement  statutes  are  affirmative,  and,  so  soon  as  a 
trespass  is  proved,  a  larceny  is  established.  There  was  a  trespass  in  tliis 
case  ;  for,  as  the  coals  were  asked  for  in  the  master's  name,  charged  to 
the  master  in  the  bill,  put  into  the  master's  sacks,  and  the  sacks  put 
into  the  master's  cart,  the  master  had  constructive  possession  before 
the  servant  had  actual  exclusive  possession.  Com.  Dig.  '-Trespass," 
B.  4.  [Lord  Campbell,  C.  J. — The  constructive  possession  of  the 
master  need  not  be  distinct  from  the  actual  possession  of  the  servant.] 
What  act  before  the  taking  in  this  case  divested  the  master  of  his  con- 
structive possession?  Robinson's  case  (2  East  P.  C.  565),  Paradice's 
case  (ib.),  proceed  on  the  principle  that,  despite  the  manual  possession 
of  the  servant,  the  constructive  possession  is  in  the  master.  So,  if  the 
servant  had  left  the  cart  and  coals,  had  returned  suddenly  in  the  night, 
and  had  taken  the  coals,  would  he  not  have  been  guilty  of  stealing  his 
master's  property?  The  case  of  R.  v.  Spears  is  not  to  be  distinguished 
from  this.  In  commenting  on  Waite's  case  and  Bazeley's  case.  East 
reconciles  them  by  saying  that  there  is  no  constructive  possession  with- 
out the  possession  of  the  servant.  In  R.  v.  Bull  the  case  was  one  of 
money,  which  constitutes  matter  of  account,  and  trespass  would  not 
lie.  Higgs  V.  Holliday,  Cro.  Eliz.  746.  This  is  not  like  the  case  of  a 
gift  to  the  master,  where  he  never  gets  possession  until  delivery  to  the 


SECT.  II.]  REGINA    V.    REED.  547 

servant.  [Lord  Campbell,  C.  J.  —  Spears'  case  is  to  be  taken  from 
the  second  edition  of  Leach,  as  is  shown  b}-  Heath,  J.,  in  4  Taunt. 
276.  Parke,  B.  —  If  we  take  it  from  Abrahat's  case,  the  corn  was 
clearly  purchased  by  the  master  before.]  Suppose  that  another  servant 
had  been  sent ;  that  he  had  delivered  the  order  ;  that  the  coals  had  been 
weighed  out ;  and  that  the  prisoner  had  then  been  sent  with  the  cart  for 
the  coals,  and  had  stolen  some  of  them,  —  that  must  have  been  larcenv. 
In  R.  V.  Harding  (R.  &  R.  125)  property  which  the  prosecutor  had 
bought  was  weighed  out  in  the  presence  of  his  clerk,  and  delivered  to 
the  carter's  servant  to  cart,  and  a  fraudulent  conversion  by  the  carman 
was  held  larceny. 

Bibton,  in  reply.  In  R.  v.  Harding  the  property  had  been  in  the 
actual  possession  of  the  master.  In  R.  v.  Watts  (2  Den.  C.  C.  14),  the 
defendant  divested  himself  of  possession  in  favor,  so  to  say,  of  his 
employers.  In  this  case  the  prisoner  has  not  so  divested  himself  by 
any  distinct  act.  In  R.  v  Watts,  the  distinct  act  was  the  receipt  had 
of  the  cheque  by  the  prisoner ;  it  being  his  duty  to  his  employers  to 
receive  it.  In  this  case  the  coals  had  not  reached  their  final  destina- 
tion. Cu7\  adv.  vuU. 

Lord  Campbell,  C.  J.  There  lies  before  me  a  judgment  that  I  had 
prepared  for  myself  at  a  time  when  there  was  reason  to  suppose  that 
there  might  be  one,  if  not  more  dissenting  judges.  I  have  reason  to 
believe  now"  that  there  will  not  be  any  dissent ;  but  still  this  judgment 
must  be  considered  only  as  embodying  the  reasons  I  give  for  my 
opinion,  because  I  have  no  authority  to  say  that  mj'  brothers  concur  in 
that  opinion,  and  the  reasons  for  it.  For  convenience,  I  have  written 
my  judgment,  and  my  learned  brothers  will  say  how  far  they  concur  or 
dissent.  I  am  of  opinion  that  the  prisoner  has  been  properly  convicted 
of  larcen}-.  There  can  be  no  doubt  that,  in  such  a  case,  the  goods 
must  have  been  in  the  actual  or  the  constructive  possession  of  the  mas- 
ter ;  and  that,  if  the  master  had  no  otherwise  the  possession  of  them 
Than  b}'  the  bare  receipt  of  his  servant  upon  the  delivery  of  another  for 
the  master's  use,  although  as  against  third  persons  this  is  in  law  a 
receipt  of  the  goods  by  the  master,  3'et  in  respect  of  the  servant  himself 
this  will  not  support  a  charge  of  larceny-,  because  as  to  him  there  was 
no  tortious  taking  in  the  first  instance,  and  consequentlj-  no  trespass. 
Therefore,  if  there  had  been  a  quantity  of  coals  delivered  to  the  pris- 
oner for  the  prosecutor,  and  the  prisoner,  having  remained  in  the 
personal  possession  of  them,  as  by  carrying  them  on  his  back  in  a 
bag,  without  anything  having  been  done  to  determine  his  original  ex- 
clusive possession,  had  converted  them  aniv%o  furandi^  he  would  have 
been  guilt}'  of  embezzlement,  and  not  of  larceny.  But  if  the  servant 
has  done  anything  which  determines  his  original  exclusive  possession 
of  the  goods,  so  that  the  master  thereby  comes  constructively  into 
possession,  and  the  servant  afterwards  converts  them  anivxo  fur  audi  ^ 
he  is  guilty  of  larceny,  and  not  merely  of  a  breach  of  trust  at  common 


548  EEGINA   V.  REED.  [CHAP.  VIII. 

law,  or  of  embezzlement  under  the  statute.  On  this  supposition  he 
subsequently  takes  the  goods  tortiously  in  converting  them,  and  com- 
mits a  trespass.  We  have  therefore  to  consider  whether  the  exclusive 
possession  of  the  coals  continued  with  the  prisoner  down  to  the  time 
of  the  conversion.  t  am  of  opinion  that  this  exclusive  possession 
was  determined  when  the  coals  were  deposited  in  the  prosecutor's 
cart,  in  the  same  manner  as  if  thej-  had  been  deposited  in  the  prose- 
cutor's cellar,  of  which  the  prisoner  had  the  charge.  The  prosecutor 
was  undoubtedly  in  possession  of  the  cart  at  the  time  when  the  coals 
were  deposited  in  it ;  and  if  the  prisoner  had  carried  off  the  cart  auimo 
fwandi,  he  would  have  been  guilty  of  larcen}'.  That  is  expressly 
determined  in  Robinson's  case  (2  East,  565).  There  seems  considera- 
ble difficulty  in  contending  that,  if  the  master  was  in  possession  of  the 
cart,  he  was  not  in  possession  of  the  coals  which  it  contained,  the  coals 
being  his  property,  and  deposited  there  by  his  order,  for  his  use.  Mr. 
Ribton  argued  that  the  goods  received  b}'  a  servant  for  his  master 
remain  in  the  exclusive  possession  of  the  servant  till  the}'  have  reached 
their  ultimate  destination.  But  he  was  unable,  notwithstanding  his 
learning  and  ingenuity,  to  give  any  definition  of  "  ultimate  destination," 
when  so  used.  He  admitted  that  the  master's  constructive  possession 
would  begin  before  the  coals  were  deposited  in  the  cellar,  when  the  cart 
containing  the  coals  had  stopped  at  his  door,  and  even  when  it  had 
entered  his  gate.  But  I  consider  the  point  of  time  to  be  regarded  is 
that  when  the  coals  were  deposited  in  the  cart.  Thenceforth  the  pris- 
oner had  only  the  custody  or  charge  of  the  coals,  as  a  butler  has  of  his 
master's  plate,  or  a  groom  has  of  his  master's  horse.  To  this  conclu- 
sion, with  the  most  sincere  deference  to  any  of  m}'  learned  brothers 
who  ma}-  at  any  time  have  taken  a  different  view,  —  to  this  conclusior 
1  should  have  come  on  principle  ;  and  I  think  that  Spears'  case  is  an 
express  authorit}-  for  it.  The  following  is  an  exact  copy  of  the  state- 
ment of  that  case,  signed  by  Buller,  J.,  in  pp.  181,  182,  and  183  of  the 
2d  volume  of  the  Black  Book,  containing  the  decisions  of  the  judges  in 
Crown  cases,  deposited  with  the  Chief  Justice  of  the  Queen's  Bench  for 
the  time  being:  "John  Spears  was  convicted  before  me  at  Kingston, 
for  stealing  forty  bushels  of  oats  of  James  Broune  &  Co.  in  a  barge  on 
the  Thames.  Broune  &  Co.  sent  the  prisoner  with  their  barge  to  Wil- 
son, a  corn  meter,  for  as  much  oats  onl}-  as  the  barge  would  carr}-, 
and  which  were  to  be  brought  in  loose  bulk.  The  prisoner  received 
from  Wilson  220  quarters  in  loose  bulk,  and  five  quarters  in  sacks  ;  the 
prisoner  ordering  that  quantit}'  to  be  put  into  sacks.  The  quantity  in 
the  sacks  was  afterwards  embezzled  by  the  prisoner ;  and  the  question 
reserved  for  the  opinion  of  the  judges  is,  whether  this  was  felony,  the 
oats  never  having  been  in  the  possession  of  the  prosecutor;  or  whether 
it  was  not  like  the  case  of  a  servant  receiving  change  or  buying  a  thing 
for  his  master,  but  never  delivering  it."  Then  there  is  a  reference  made 
to  D}'.  5,  and  1  Show.  52  ;  and  then  this  is  signed  by  Sir  J.  Buller ;  and 
then  is  added,  "  25th  April,   1798.     Conviction  afiBrmed."     Now  that 


SECT.  II.]  KEGINA   V.    REED.  549 

is  an  exact  copy  from  the  Black  Book.     In  that  case  the  question  arose 
whether  the  corn,  while  in  the  prosecutor's  barge,  in  which  it  was  to  be 
brought  by  the  prisoner  to  the  prosecutor's  granary,  was  to  be  consid- 
ered in  the  possession  of  the  prosecutor ;  and  the  judges  unanimously 
held,  that  from  the  time  of  its  being  put  into  the  barge  it  was  in  the 
prosecutor's  possession,  although  the  prisoner  had  the  custody  or  charge 
of  it.     That  case  has  been  met  at  the  bar  by  a  suggestion  that  the 
whole  cargo  of  corn,  of  which  the  quantity  put  on  board  this  barge  was 
a  part,  was  or  might  have  been  purcliased  by  the  prosecutor,  so  that  he 
might  have  had  a  title  and  constructive  possession  before  the  delivery 
to  the  prisoner.     But  the  very  statement  of  the  case  in  the  Black  Book, 
and  the  authorities  referred  to,  show  that  the  judges  turned  their  atten- 
tion to  the  question  whether  the  exclusive  possession  of  the  servant  had 
not  been  determined  before  conversion  ;  and  during  the  argument  of 
Rex  V.  Walsh  (4  Taunt.  27G)  we  have  the  ratio  decidendi  in  Spears' 
case   explicitly   stated  by  one   of  the  judges    who   concurred   in   the 
decision  :     "  Heath,  J.  —  That  case  went  upon  the  ground  that  the  corn 
was  in  the  prosecutor's  barge,  which  was  the  same  thing  as  if  it  had 
been  in  his  granary."     Read  "  cart  "  for  "  barge,"  "  coals  "  for  "  corn," 
and  "cellar"  for  "granary,"  and  the  two  cases  are  for  this  purpose 
precisely  the  same.     There  is  no  conflicting  autliority  ;  for  in  all  the 
cases  relied  upon  by  Mr.  Ribton,  the  exclusive  personal  possession  of 
the  prisoner  had  continued  down  to  the  time  of  the  wrongful  conver- 
sion.    It  is  said  there  is  great  subtlety  in  giving  such  an  effect  to  the 
deposit  of  the  coals  in  the  prosecutor's  cart ;  but  the  objection  rests  on 
a  subtlety  wholly  unconnected  with  the  moral  guilt  of  the  prisoner,  for 
as  to  that  it  must  be  quite  immaterial  whether  the  property  in  the  coals 
had  or  had  not  vested  in  the  prosecutor  prior  to  the  time  when  they 
were  delivered  to  the   prisoner.     We  are  to  determine  whether  this 
would  have  been  a  case  of  larceny  at  common  law  before  there  was  any 
statute  against  embezzlement ;  and  I  do  not  think  that  there  would  have 
been  any  reproach  to  the  administration  of  justice  in  holding  that  the 
subtlety  arising  from  the  prosecutor  having  had  no  property  in  the  sub- 
ject of  the  larceny  before  its  delivery  to  the  prisoner,  who  stole  it,  was 
sufficiently  answered  by  the  subtlety  that  when  the  prisoner  had  once 
parted  with  the  personal  possession  of  it,  so  that  a  constructive  posses- 
sion by  the  prosecutor  began,  the  servant  who  subsequently  stole  it 
should  be  liable  to  be  punished,  as  if  there  had  been  a  prior  property 
and  possession  in  the  prosecutor,  and  that  the  servant  should  be  ad- 
judged liable  to  be  punished  for  a  crime,  instead  of  being  allowed  to 
say  that  he  had  only  committed  a  breach  of  trust,  for  which  he  might  be 
sued  in  a  civil  action.     In  approaching  the  confines  of  different  offences 
created  by  common  law  or  by  statute,  nice  distinctions  must  arise,  and 
must  be  dealt  with.     In  the  present  case  it  is  satisfactory  to  think  that 
the  ends  of  justice  are  effectually  gained  by  affirming  the  conviction  ; 
for  the  only  objection  to  it  is  founded  upon  an  argument  that  he  ought 
to  have  been  convicted  of  another  offence  of  the  same  character,  for 
which  he  would  have  been  liable  to  the  same  punishment. 


550  COMMONWEALTH   V.   RYAN.  [CHAP.  VIII. 

Jervis,  C.  J.  I  concur  in  the  judgment  of  the  Lord  Chief  Justice. 
I  had  originally  written  a  judgment  concurring  in  the  view  taken  by 
my  lord  ;  but  ultimately  1  have  not  found  it  necessary  to  read  it.  It  is 
admitted  that  the  cart  was  in  the  possession  of  the  servant  for  a  special 
purpose  ;  if  he  had  taken  the  cart,  he  would  have  been  guilty  of  lar- 
ceny ;  and  if  the  cart  for  this  purpose  continued  the  cart  of  the  master, 
the  delivery  of  the  coals  into  the  cart  was  a  delivery  to  the  master,  and 
!nakes  the  offence  a  larceny'. 

Parke,  B.  I  certainly  had  diflered  from  the  view  of  this  case  which 
has  Ijeen  taken  by  Lord  Campbell  at  a  time  when  it  was  uncertain 
what  the  case  of  Spears  actually  was,  and  treating  this  case  as  res 
nova.  The  book  in  which  the  opinions  of  the  judges  are  written,  and 
which  is  always  in  the  custody  of  the  Lord  Chief  Justice,  was  mislaid  ; 
and  the  case  of  John  Spears  was  differently  reported  in  the  two  editions 
of  Leach,  and  also  in  p:ast's  Crown  Law  ;  and  that  case  could  not  for  a 
long  time  be  found.  However,  since  it  has  been  found,  I  have  satisfied 
myself;  and  I  entertain  no  doubt  upon  it.  I  should  have  delivered  my 
reasons  at  length  ;  but  it  is  unnecessary  now  to  do  so.  The  cases  of 
Rex  r.  Abrahat  and  Rex  v.  Spears  having  been  discovered,  and  having 
read  that  case  with  the  explanation  of  Heath,  J.,  I  find  the  point  de- 
cided ;  and  though,  therefore,  if  tliis  were  res  nova,  I  should  have 
pronounced  an  opinion  that  this  was  not  larceny,  yet  as  that  case  is  a 
decided  authority,  by  the  authority  of  that  case  I  am  bound  ;  and  it  is 
unnecessary  for  me  to  deliver  my  reasons  at  any  greater  length. 

The  other  judges  concurred.  Conviction  affirmed. 


COMMONWEALTH   v.    RYAN. 
Supreme  Judicial  Court  of  Massachusetts.     1892. 

[Reported  155  Massachusetts,  523.] 

Holmes,  J.'^  This  is  a  complaint  for  embezzlement  of  mone3\ 
The  case  for  the  government  is  as  follows  :  The  defendant  was  em- 
ployed by  one  Sullivan  to  sell  liquor  for  him  in  his  store.  Sullivan 
sent  two  detectives  to  the  store,  with  marked  money  of  Sullivan's,  to 
make  a  feigned  purchase  from  the  defendant.  One  detective  did  so. 
The  defendant  dropped  the  money  into  the  money  drawer  of  a  cash 
register,  which  happened  to  be  open  in  connection  with  another  sale 
made  and  registered  by  the  defendant,  but  he  did  not  register  this  sale, 
as  was  customary,  and  afterward  —  it  would  seem  wathin  a  minute  or 
two —  he  took  the  money  from  the  drawer.  The  question  presented  is 
/  whether  it  appears,  as  matter  of  law,  that  the  defendant  was  not  guilty 
of  embezzlement,  but  was  guilty  of  larceny,  if  of  anything.     The  de- 

1  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


SECT.  TI.]  COMMONWEALTH    V.    -RYAN.  551 

fendant  asked  rulings  to  that  effect  on  two  grounds  :  first,  that  after  the 
money  was  put  into  the  drawer  it  was  in  Sullivan's  possession,  and  there- 
fore the  removal  of  it  was  a  trespass  and  larceny  ;  and  secondly',  that 
Sullivan's  ownership  of  the  money,  in  some  way  not  fully  explained, 
prevented  the  offence  from  being  embezzlement.  We  will  consider 
these  positions  successivel}'. 

We  must  take  it  as  settled  that  it  is  not  larceny  for  a  servant  to  con- 
vert property  delivered  to  him  by  a  third  person  for  his  master,  provided 
he  does  so  before  the  goods  have  reached  their  destination,  or  some- 
thing more  has  happened  to  reduce  him  to  a  mere  custodian  (Com- 
monwealth V.  King,  9  Cush.  284)  ;  while,  on  the  other  hand,  if  the 
property  is  delivered  to  the  servant  by  his  master,  the  conversion  is 
larceny.  Commonwealth  v.  Berry,  99  Mass.  428  ;  Commonwealth  v. 
Davis,  104  Mass.  548. 

This  distinction  is  not  ver}'  satisfactor}',  but  it  is  due  to  liistorical 
accidents  in  the  development  of  the  criminal  law,  coupled,  perhaps, 
with  an  unwillingness  on  the  part  of  the  judges  to  enlarge  the  limits  of 
a  capital  offence.  2  Leach  (4th  ed.),  843,  848,  note  ;  1  Leach  (4th  ed.), 
35,  note  ;  2  East  P.  C.  568,  571. 

The  historj'  of  it  is  this.  There  was  no  felonj-  when  a  man  received 
possession  of  goods  from  the  owner  without  violence.  Glanv.,  bk. 
10,  c.  13;  Y.  B.  13  Edw.  IV.  9,  pi.  5;  3  Co.  Inst.  107.  The  early 
judges  did  not  always  distinguish  clearly-  in  their  language  between 
the  deliver}'  of  possession  to  a  bailee  and  the  giving  of  custody  to  a 
servant,  which  indeed  later  judges  sometimes  have  failed  to  do.  E.  g. 
Littleton  in  Y.  B.  2  Edw.  IV.  15,  pi.  7;  3  Hen.  VII.  12,  pi.  9; 
Ward  V.  Macauley,  4  T.  R.  489,  490.  When  the  peculiar  law  of  mas- 
ter and  servant  was  applied  either  to  the  master's  responsibilit}'  or  to 
his  possession,  the  test  seems  to  have  been  whether  or  not  the  servant 
was  under  the  master's  eye,  rather  than  based  on  the  notion  of  status 
and  identity  of  person,  as  it  was  at  a  later  day.  See  Byington  v. 
Simpson,  134  Mass.  1G9,  170.  Within  his  house  a  master  might  be 
answerable  for  the  torts  of  his  servant,  and  might  have  possession  of 
goods  in  his  servant's  custody,  although  he  himself  had  put  the  goods 
into  the  servant's  hands  ;  outside  tlie  house  there  was  moi'e  doubt ;  as 
when  a  master  intrusted  his  horse  to  his  servant  to  go  to  market.  Y.  B. 
21  Hen.  VII.  14,  pi.  21  ;  T.  24  Edw.  III. ;  Bristol  in  Molloy,  De  Jure 
Maritimo,  bk.  2,  c.  3,  §  10  ;  Y.  B.  2  Hen.  IV.  18,  pi.  6  ;  13  Edw.  IV. 
10,  pi.  5;  s.  c.  Bro.  Alir.  Corone,  pi.  160;  Staundforde,  I.,  c.  15,  fol. 
25;  c.  18,  fol.  26;  1  Hale,  P.  C.  505,  note.  See  Heydon  &  Smith's 
case,  13  Co.  Rep.  67,  69  ;  Drope  v.  Theyar,  Po[)ham,  178,  179  ;  Combs 
V.  Bradley,  2  Salk.  613  ;  and,  further,  42  Ass.  pi.  17,  fol.  260  ;  42  Edw. 
in.  11,  pi.  13;  Ass.  Jerus.  (ed.  1690),  cc.  205,  217.  It  was  settled 
by  St.  21  Hen.  VIII.  c  7,  that  the  conversion  of  goods  delivered  to  a 
servant  b}'  his  master  was  felon}",  and  this  statute  has  been  thought  to 
l>e  only  declaratory  of  the  common  law  in  later  times,  since  the  distinc- 
tion between  the  ))ossession  of  a  bailee  and  the  custody  of  a  servant 


552  COMMONWEALTH  V.    EYAN.  [CHAP.  VIII. 

has  been  developed  more  fully,  on  the  ground  that  the  custody  of  the 
servant  is  the  possession  of  the  master.  2  East  P.  C.  564,  565  ;  The 
King  V.  Wilkins,  1  Leach  (4th  ed.),  520,  523.  See  Kelyng,  35 ;  Fitzh. 
Nat.  Brev.  91  E;  Blosse's  case,  Moore,  248;  s.  c.  Owen,  52,  and 
Gouldsb.  72.  But  probably  wlien  the  act  was  passed  it  confirmed  the 
above  mentioned  doubt  as  to  the  master's  possession  where  the  servant 
was  intrusted  with  property  at  a  distance  from  his  master's  house  in 
cases  outside  the  statute,  that  is,  when  the  chattels  were  delivered  by  a 
third  person.  In  Dyer,  5a,  bb,  it  was  said  that  it  was  not  within  the 
statute  if  an  apprentice  ran  off  with  the  money  received  from  a  third 
person  for  his  master's  goods  at  a  fair,  because  he  had  it  not  by  tlie 
delivery  of  his  master.  This,  very  likely,  was  correct,  because  the 
statute  only  dealt  with  delivery  by  the  master  ;  but  the  case  was  taken 
before  long  as  authority  for  the  broader  proposition  that  the  act.  is  not 
a  felony,  and  the  reason  was  invented  to  account  for  it  that  the  servant 
has  possession,  because  the  money  is  delivered  to  him.  1  Hale  P.  C. 
667,  668.  This  phrase  about  delivery  seems  to  have  been  used  first  in 
an  attempt  to  "distinguish  between  servants  and  bailees.  Y.  B.  13 
Edw.  IV.  10,  pi.  5  ;  Moore,  248  ;  but  as  used  here  it  is  a  perverted 
remnant  of  the  old  and  now  exploded  notion  that  a  servant  away  from 
his  master's  house  always  has  possession.  The  old  case  of  the  servant 
converting  a  horse  with  which  his  master  had  intrusted  him  to  go  to 
market  was  stated  and  explained  in  the  same  way,  on  the  ground  that 
the  horse  was  delivered  to  the  servant.  Crompton,  Just.  35i,  pi.  7. 
See  The  King  v.  Bass,  1  Leach  (4th  ed.),  251.  Yet  the  emptiness  of 
the  explanation  was  shown  by  the  fact  that  it  still  was  held  felony  when 
the  master  delivered  property  for  service  in  his  own  house.  Kelyng, 
35.  The  last  step  was  for  the  principle  thus  qualified  and  explained 
to  be  applied  to  a  delivery  by  a  third  person  to  a  servant  in  his  master's 
shop,  although  it  is  possible  at  least  that  the  case  w^ould  have  been 
decided  diflTerently  in  the  time  of  the  Year  Books  (Y.  B.  2  Edw.  IV. 
15  pi.  7;  Fitzh.  Nat.  Brev.  91  E)  ;  and  although  it  is  questionable 
whether  on  sound  theory  the  possession  is  not  as  much  in  the  master  as 
if  he  had  delivered  the  property  himself.  Rex  v.  Dingley  (1687),  stated 
in  The  King  v.  Bazeley,  2  Leach  (4th  ed.),  835,  841,  and  in  The  King 
V.  Meeres,  1  Show.  50,  53  ;  Waite's  case  (1743),  2  East  P.  C.  570  ;  s.  c. 
1  Leach  (4th  ed.),  28,  35,  note  ;  Bull's  case,  stated  in  The  King  v. 
Bazeley,  2  Leach  (4th  ed.),  885,  841  ;  s.  c.  2  East  P.  C.  571,  572  ;  The 
King  V.  Bazele}',  ubi  supra;  Regina  v.  Masters,  1  Den.  C.  C.  332; 
Regina  v.  Reed,  Dears.  C.  C.  257,  261,  262. 

The  last  mentioned  decisions  made  it  necessary  to  consider  with  care 
what  more  was  necessary,  and  what  was  sufficient,  to  reduce  tlie  servant 
to  the  position  of  a  mere  custodian.  An  obvious  case  was  when  the 
property  was  finally  deposited  in  the  place  of  deposit  provided  by  the 
master,  and  subject  to  his  control,  although  there  was  some  nice  discus- 
sion as  to  what  constituted  such  a  place.  Regina  v.  Reed,  Dears.  C.  C. 
257.     No  doubt  a  final  deposit  of  money  in  the  till  of  a  shop  would 


SECT.  II.]  COMMONWEALTH    V.    RYAN.  553 

have  the  effect.  Waite's  case,  2  East  P.  C.  570,  571  ;  s.  c.  1  Leach 
(4th  ed.),  28,  35,  note  ;  Bull's  case,  2  East  P.  C.  572  ;  s.  c.  2  Leach  (4th 
ed.),  841,  842;  The  King  v.  Bazeley,  2  East  P.  C.  571,  574;  s.  c.  2 
Leach  (4th  ed.),  835,  843,  note  ;  Regina  v.  Wright,  Dears.  &  Bell,  431, 
441.  But  it  is  plain  that  the  mere  physical  presence  of  the  money  there 
for  a  moment  is  not  conclusive  while  the  servant  is  on  the  spot  and  has 
not  lost  his  power  over  it;  as,  for  instance,  if  the  servant  drops  it,  and 
instantly  picks  it  up  again.  Such  cases  are  among  the  few  in  which 
the  actual  intent  of  the  party  is  legally  important ;  for,  apart  from 
other  considerations,  the  character  in  which  he  exercises  his  control 
depends  entirely  upon  himself.  Sloan  v.  Merrill,  135  Mass.  17,  19; 
Jefferds  v.  Alvard,  151  Mass.  94,  95  ;  Commonwealth  v.  Drew,  153 
Mass.  588,  594. 

It  follows  from  what  we  have  said  that  the  defendant's  first  position 
cannot  be  maintained,  and  that  the  judge  was  right  in  charging  the 
jury  that,  if  the  defendant  before  he  placed  the  money  in  the  drawer 
intended  to  appropriate  it,  and  with  that  intent  simph'  put  it  in  the 
drawer  for  his  own  convenience  in  keeping  it  for  himself,  that  would 
not  make  his  appropriation  of  it  just  afterwards  larceny.  The  distinc- 
tion rnay  be  arbitrary-,  but,  as  it  does  not  affect  the  defendant  otherwise 
than  by  giving  him  an  opportunity,  whichever  offence  he  was  convicted 
of,  to  contend  that  he  should  have  been  convicted  of  the  other,  we  have 
the  less  uneasiness  in  applying  it. 

With  regard  to  the  defendant's  second  position,  we  see  no  ground  for 
contending  that  the  detective  in  his  doings  was  a  servant  of  Sullivan, 
or  that  he  had  not  a  true  possession  of  the  mone}',  if  that  question  were 
open,  which  it  is  not.  The  onl}'  question  reserved  by  the  exceptions  is 
whether  Sullivan's  ownership  of  the  money  prevented  the  defendant's 
act  from  being  embezzlement.  It  has  been  supposed  to  make  a  differ- 
ence if  the  right  of  possession  in  the  chattel  converted  by  the  servant 
has  vested  in  the  master  previous  to  the  delivery  to  the  servant  by  tlie 
third  person.  1  Eng.  Crim.  Law  Com'rs  Rep.  (1834),  31,  pi.  4.  But 
this  notion,  if  anything  more  than  a  defective  statement  of  the  decisions 
as  to  deliver}'  into  the  master's  barge  or  cart  (Rex  v.  Walsh,  4  Taunt. 
258,  266,  and  Regina  v.  Reed,  ubi  supra)  ^  does  not  apply  to  a  case 
like  the  present,  which  has  been  regarded  as  embezzlement  in  England 
for  the  last  hundred  years.  Bull's  case,  stated  in  The  King  i\  Bazeley, 
2  Leach  (4th  ed.),  835,  841  :  s.  c.  2  East  P.  C.  571,  572;  The  King 
V.  Whittingham,  2  Leach  (4th  ed.),  912  ;  The  King  v.  Headge,  2  Leach 
(4th  ed.),  1033  ;  s.  c.  Russ.  &  Ry.  160;  Regina  v.  Gill,  Dears.  C.  C. 
289.  If  we  were  to  depart  from  the  English  decisions,  it  would  not  be 
in  the  way  of  introducing  further  distinctions.  See  Commonwealth  v. 
Bennett,  118  Mass.  443,  454. 

Exceptiotis  overruled 


554  REX   V.   MUCKLOW.  [CHAP.  VIII. 

SECTION   II.  {continued). 
(c)  Possession  in  case  of  Finding. 

REX   V.   MUCKLOW. 
Crown  Case  Reserved.     1827. 

[Reported  1  Moodij  C.  C.  160.] 

The  prisoner  was  tried  before  Mr.  Justice  Holro3'd,  at  the  Spring 
assizes  for  the  county  of  Warwick,  in  the  year  1827,  upon  an  indict- 
ment which  charged  him  with  stealing  a  bill  of  exchange  for  ten 
pounds  eleven  shillings  and  sixpence,  the  first  count  stating  it  to 
be  the  property  of  John  Lea  and  others,  and  the  second  count  as  the 
property  of  one  other  James  Mucklow.  There  were  two  other  counts 
stating  it  to  be  a  warrant  for  the  payment  of  ten  pounds  eleven  shil- 
lings and  sixpence,  instead  of  a  bill  of  exchange. 

The  instrument  in  question  was  a  draft  drawn  b}-  John  Lea  and 
Sons,  on  the  da}-  it  bears  date,  at  Kidderminster  (where  the}'  carried 
on  business),  on  their  bankers  at  the  same  place,  and  was  as  follows  :  — 

Kidderminster,  Dec.  1.  1826. 
Messrs.  Wakeman  and  Turner,  Bankers,  Kidderminster : 

Pay  Mr.  .James  Mucklow,  or. bearer,  ten  pounds  eleven  shillings  and 
sixpence. 

£10.  lis.  Old.  John  Lea  and  Sons. 

This  draft  was  unstamped,  and  was  written  on  the  same  sheet  of 
paper  with  a  letter,  directed  "  James  Mucklow,  Saint  Martin's  Lane, 
Birmingham,"  and  was  sent  b}-  Lea  and  Sons  by  the  post  to  Birming- 
ham, which  is  eighteen  miles  from  Kidderminster. 

No  person  of  that  name  being  found  or  heard  of  to  be  living  in 
Saint  Martin's  Lane,  Birmingham,  and  the  prisoner  living  in  a  house 
about  a  dozen  yards  from  Saint  JNIartin's  Lane,  with  his  father,  Joseph 
Mucklow  (who  was  also  included  in  the  same  indictment,  but  ac- 
quitted), the  postman,  on  the  second  of  the  same  December,  called 
with  the  letter  at  their  house  when  the}'  were  out,  and  left  a  message 
that  there  was  a  letter  for  them  which  they  were  to  send  for :  and  it 
was  in  consequence  thereof,  on  the  same  day,  delivered  to  the  father, 
and  afterwards  came  to  the  hands  of  the  prisoner  his  son,  who  appro- 
priated the  draft  to  his  own  use,  and  received  payment  of  it,  under  cir- 
cumstances proved  by  evidence  arising  from  the  contents  of  the  letter, 
and  otherwise,  that  satisfied  the  juiy  be  knew  the  letter  and  draft  were 
not  intended  for  him,  but  for  another  person,  and  upon  which  they 
found  him  guilty  of  the  larceny. 

The  letter  and  draft  were  intended  for  another  Mr.  James  Mucklow, 
then  of  New  Hall  Street,  Birmingham,  to  whom  Messrs.  Lea  and  Sons 


SECT.  II.]  MERRY   V.    GREEN.  555 

were  then  indebted,  to  the  amount  of  the  sum  contained  in  the  draft, 
for  goods  sold  and  delivered  ;  but  it  was  misdirected  to  Saint  Martin's 
Lane  b}'  mistake,  and  sent  by  the  post,  in  consequence  of  an  appli- 
cation by  letter  by  that  James  Mucklow  to  them  for  payment,  as  the 
goods  were  sold  for  cash. 

It  was  objected  that  this  could  not  in  law  amount  to  larceny,  as  the 
possession  of  the  letter  and  draft  had  been  voluntarily  parted  with  by 
Lea  and  Sons,  and  also  by  the  postman,  and  without  any  fraud  on  the 
part  of  the  prisoner;  and  Story's  case,  Russ.  &  R}-.  C.  C.  R.  81,  and 
Walsh's  case,  ibid.  215,  were  cited. ^ 

The  learned  judge  respited  the  judgment,  to  take  the  opinion  of  the 
judges  on  these  points. 

At  a  meeting  of  the  judges  in  Easter  Term,  1827,  this  conviction 
was  held  wrong,  on  the  ground  that  it  did  not  appear  that  the  prisoner 
had  any  animus  farancU  when  he  first  received  the  letter;  and  a 
pardon  was  recommended. 


MERRY   V.    GREEN. 

Exchequer.     1841. 

{Reported  7  Meeson  ^-  Welshjj,  623.] 

Trespass  for  assault  and  false  imprisonment.  Pleas  :  first,  not  guilty, 
whereupon  issue  was  joined  ;  secondly,  that  the  plaintiff  had  feloniously 
stolen,  taken,  and  carried  awa}'  a  certain  purse  filled  with  coin,  etc.,  of 
the  goods  and  chattels  of  one  Francis  Tunnicliffe,  wherefor  the 
defendants  had  given  the  plaintiff  in  charge  to  a  peace-oflficer,  and  the 
plaintiff  was  therefore  arrested  and  detained  a  reasonable  time,  which 
are  the  alleged  trespasses  in  the  declaration  mentioned.^  To  this  plea 
the  plaintiff'  replied  de  injuria,  whereupon  issue  was  joined. 

At  the  trial  before  Tindal,  C.  J.,  at  the  last  Warwickshire  Assizes, 
the  following  appeared  to  be  the  facts  of  the  case :  Messrs  Mammatt 
and  Tunnicliffe,  who  had  for  some  time  resided  together  at  Ashby-de- 
la-Zonch,  in  the  same  house,  and  keeping  the  same  table  and  servants, 
in  October,  1839,  broke  up  their  establishment  and  sold  their  furniture 
(which  was  parti}' joint  and  parti}-  separate  property)  by  public  auction. 
At  that  sale  the  plaintiff,  who  was  a  shoemaker  also  residing  in  Ashb}', 
became  the  purchaser,  at  the  sum  of  £1  65.,  of  an  old  secretary  or 
bureau,  the  separate  property  of  Mr.  Tunnicliffe.  The  plaintiff  kept  the 
bureau  in  his  house,  and  on  the  18tli  of  November  following,  he  sent 
for  a  bo}'  of  the  name  of  Garland,  a  carpenter's  apprentice,  to  do  some 
repairs  to  the  bureau.     While  Garland  was  so  engaged  he  remarked  to 

1  Two  other  objections  iirejed  by  the  defendant  are  omitted. 

2  The  substance  only  of  the  second  plea  is  stated. 


556  ■  MEKRY   V.   GREEN.  [CHAP.  VIII. 

the  plaintiff  that  he  thought  there  were  some  secret  drawers  in  the 
bureau,  and  touching  a  spring  he  pulled  out  a  drawer  which  contained 
a  quantit\'  of  writings.  The  plaintiff  then  discovered  another  drawer, 
in  which  was  a  purse  containing  several  sovereigns  and  other  coins,  and 
under  the  purse  a  quantity  of  bank-notes.  Of  this  property  the  plain- 
tiff took  possession,  and  telling  Garland  that  the  notes  were  bad,  he 
opened  the  purse  and  gave  him  one  of  the  sovereigns,  at  the  same 
time  cliarging  him  to  keep  the  matter  secret.  Garland  being  interro- 
gated bv  his  parents  how  he  came  bv  the  possession  of  the  sovereign, 
the  transaction  transpired  ;  and  it  being  subsequently  discovered  that 
the  plaintiff  had  appropriated  the  property  to  his  own  use,  falsely 
alleging  that  he  had  never  had  possession  of  a  great  portion  of  it,  the 
defendants  (one  of  whom  was  the  solicitor  of  Mr.  Tunnicliffe)  went  with 
a  police  officer  to  the  plaintiff's  house,  took  him  into  custody,  and  con- 
veyed him  before  a  magistrate,  on  a  charge  of  felony.  The  plaintiff 
was  ultimately  discharged,  the  magistrate  doubting  whether  a  charge 
of  felony  could  be  supported.  At  the  trial,  a  witness  of  the  name  of 
Hannah  Jenkins  was  called  on  behalf  of  the  plaintiff,  who  deposed 
that  she  w^as  present  at  the  auction  and  remembered  the  piece  of  furni- 
ture in  question  being  put  up  for  sale  and  bought  by  the  plaintiff;  that 
after  it  was  sold  an  observation  was  made  by  some  of  the  bystanders 
to  the  effect  that  the  plaintiff*  might  have  bought  something  more  than 
the  bureau,  as  one  of  the  drawers  would  not  open,  upon  which  the 
auctioneer  said,  "So  mucli  the  better  for  the  buyer;"  adding,  "I 
have  sold  it  with  its  contents,  and  it  is  his."  This  statement  was  op- 
posed by  the  evidence  of  the  auctioneer,  who  stated,  on  cross-exami- 
nation b}'  the  defendant's  counsel,  that  there  was  one  drawer  which 
would  not  open,  and  that  what  he  had  said  was,  "That  is  of  no 
consequence  ;  I  have  sold  the  secretary  and  not  its  contents."  It  did 
not  appear  that  anj'  person  knew  that  the  bureau  contained  anything 
whatever. 

The  learned  chief  justice,  in  summing  up,  told  the  jurv  that,  as  the 
propert}'  had  been  delivered  to  the  plaintiff  as  the  purchaser,  he 
thought  there  had  been  no  felonious  taking ;  and  left  to  them  the  ques- 
tion of  damages  only,  reserving  leave  for  the  defendant  to  move  to 
enter  a  nonsuit.  The  jury  found  a  verdict  for  the  plaintiff  with  £50 
damages. 

In  Michaelmas  Term,  Whitehurst  obtained  a  rule  to  show  cause  why 
the  verdict  should  not  be  set  aside  and  a  nonsuit  entered  or  a  new 
trial  had.^ 

Parke,  B.  In  this  case  there  was  clearly  no  bailment,  because  there 
was  no  intention  to  part  with  the  propert}'  in  question.  It  amounts 
therefore,  only  to  a  finding,  and  comes  within  the  modern  decisions  on 

1  Arguments  of  counsel  are  omitted.  During  the  argument  for  the  plaintiff  Parke, 
B.,  said  :  "  Suppose  a  person  finds  a  cheque  in  the  street,  and  in  the  first  instance  takes 
it  up  merely  to  see  what  it  is  :  if  afterwards  he  cashes  it,  and  appropriates  the  monej 
to  his  own  use,  that  is  a  felony,  though  he  is  a  mere  finder  tiU  he  looks  at  it."  —  Ed. 


SECT.  II  ]  MERRY   V.    GREEN.  657 

that  subject.  It  is  a  matter  fit  for  our  serious  consideration,  and  we 
will  speak  to  the  chief  justice  before  we  deliver  our  judgment.  No 
doubt  the  same  evidence  is  necessarj'  in  the  present  case  as  would  be 
required  to  support  an  indictment.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by  — 

Parke,  B.  M}-  Lord  Chief  Justice  thought  in  this  case  that,  even 
assuming  the  facts  of  which  evidence  was  given  by  the  defendant  to 
be  true,  tlie  taking  of  the  purse  and  abstracting  its  contents  was  not  a 
larceu}' ;  and  that  is  the  question  which  he  reserved  for  the  opinion  of 
the  court,  giving  leave  to  move  to  enter  a  nonsuit.  After  hearing  the 
argument,  we  have  come  to  the  conclusion  that,  if  the  defendant's  case 
was  true,  there  was  sufficient  evidence  of  a  larceny  b}-  the  plaintiff;  but 
we  cannot  direct  a  nonsuit,  because  a  fact  was  deposed  to  on  the  part 
of  the  plaintiff  which  ought  to  have  been  left  to  the  jury,  and  which,  if 
believed  by  them,  would  have  given  a  colorable  right  to  him  to  the  con- 
tents of  the  secretar}'  as  well  as  to  the  secretary  itself;  namely,  the 
declaration  of  the  auctioneer  that  he  sold  all  that  the  piece  of  furniture 
contained  with  the  article  itself;  and  then  the  abstraction  of  the  con- 
tents could  not  have  been  felonious.  Tiiere  must  therefore  be  a  new 
trial,  and  not  a  nonsuit. 

But  if  we  assume,  as  the  defendant's  case  was,  that  the  plaintiff  had 
express  notice  that  he  was  not  to  have  an}'  title  to  the  contents  of  tlie 
secretary  if  there  happened  to  be  anything  in  it,  and  indeed  without 
such  express  notice,  if  he  had  no  ground  to  believe  that  he  liad  bought 
the  contents,  we  are  all  of  opinion  that  there  was  evidence  to  make 
out  a  case  of  larceny. 

If  was  contended  that  there  was  a  deliver}-  of  the  secretary  and  the 
money  in  it  to  the  plaintiff  as  his  own  property,  which  gave  him  a 
lawful  possession,  and  that  his  subsequent  misappi'opriation  did  not 
constitute  a  felony.  But  it  seems  to  us  that,  though  there  was  a  deliv- 
ery of  the  secretary,  and  a  lawful  property  in  it  thereby  vested  in  the 
plaintiff,  there  was  no  delivery  so  as  to  give  a  lawful  possessit)n  of  the 
purse  and  money.  The  vendor  had  no  intention  to  deliver  it,  nor 
vendee  to  receive  it ;  both  were  ignorant  of  its  existence  ;  and  when 
the  plaintiff  discovered  that  there  was  a  secret  drawer  containing  the 
purse  and  money,  it  was  a  simple  case  of  finding,  and  the  law  applica- 
ble to  all  cases  of  finding  applies  to  this. 

The  old  rule,  that  "if  one  lose  his  goods  and  another  find  them,' 
though  he  convert  them  animo  furandl  to  his  own  use,  it  is  no  larceny," 
has  undergone  in  more  recent  times  some  limitations  ;  one  is,  that  if  the 
finder  knows  who  the  owner  of  the  lost  chattel  is,  or  if,  from  any  mark 
upon  it  or  the  circumstances  under  which  it  is  found,  the  owner  could 
be  reasonably  ascertained,  then  the  fraudulent  conversion  animo 
fiirandi  constitutes  a  larceny.  Under  this  head  fall  the  cases  where 
the  finder  of  a  pocket-book  with  bank-notes  in  it  with  a  name  on  them 
converts  them  animo  furandi ;  or  a  hackney  coachman  who  abstracts 


558  REGINA   V.    THURBORN.  [CHAP.  VIII. 

the  contents  of  a  parcel  which  has  been  left  in  his  coach  by  a  pas- 
senger, whom  he  could  easih'  ascertain  ;  or  a  tailor  who  finds  and  ap- 
plies to  his  own  use  a  pocket-book  in  a  coat  sent  to  him  to  repair  b}'  a 
customer,  whom  he  must  know  ;  all  these  have  been  held  to  be  cases  of 
larceny ;  and  the  present  is  an  instance  of  the  same  kind  and  not  dis- 
tinguishable from  them.  It  is  said  that  the  offence  cannot  be  larcen}' 
unless  the  taking  would  be  a  trespass,  and  that  is  true  ;  but  if  the 
finder,  from  the  circumstances  of  the  case,  must  have  known  who  was 
the  owner,  and  instead  of  keeping  the  chattel  for  him,  means  from  the 
first  to  appropriate  it  to  his  own  use,  he  does  not  acquire  it  by  a  rightful 
title,  and  the  true  owner  might  maintain  trespass  ;  and  it  seems  also 
from  Wynne's  case  that  if,  under  the  like  circumstances,  he  acquire 
possession  and  mean  to  act  honestly,  but  afterwards  alter  his  mind 
and  open  the  parcel  with  intent  to  embezzle  its  contents,  such  unlawful 
act  would  render  him  guilty  of  larceny. 

We  therefore  think  that  the  rule  must  be  absolute  for  a  new  trial,  in 
order  that  a  question  may  be  submitted  to  the  jury  whether  the  plain- 
tiff had  reason  to  believe  that  he  bought  the  contents  of  the  bureau, 
if  an}-,  and  consequently  had  a  color  of  right  to  the  property.^ 

Hide  absolute /or  a  neio  trial. 


REGINA  V.   THURBORN. 
Crown  Case  Reserved.     1849. 
[Reported  1  Denison  C.  C.  387.2] 

The  prisoner  was  tried  before  Parke,  B.,  at  the  summer  assizes  for 
Huntingdon,  1848,  for  stealing  a  bank-note. 

He  found  the  note,  which  had  been  accidental!}^  dropped  on  the  high 
road.  Tljere  was  no  name  or  mark  on  it,  indicating  who  was  the 
owner,  nor  were  there  any  circumstances  attending  the  finding  which 
would  enable  him  to  discover  to  whom  the  note  belonged  when  he 
picked  it  up  ;  nor  had  he  any  reason  to  believe  that  the  owner  knew 
where  to  find  it  again.  The  prisoner  meant  to  appropriate  it  to  his 
own  use,  when  he  picked  it  up.  The  day  after,  and  before  he  had  dis- 
posed of  it,  he  was  informed  that  the  prosecutor  was  the  owner,  and 
had  dropped  it  accidentally  ;  he  then  changed  it.  and  appropriated  the 
money  taken  to  his  own  use.  The  jur}'  found  that  he  had  reason  to 
believe,  and  did  believe  it  to  be  the  prosecutor's  property,  before  he 
thus  changed  the  note. 

The  learned  Baron  directed  a  verdict  of  guilty,  intimating  that  he 

1  Ace.  Cartwright  v.  Green,  8  Ves.  40.5  ;  Robinson  v.  State,  11  Tex.  App  403  See 
Dnrfee  v.  Jones,  11  R.  I.  .588  ;  s.  c.  1  Gray's  Cases  on  Prop.  380.  —  Ed. 

2  This  case  was  reported  as  Reg.  v.  Wood,  3  Cox  C.  C.  453.  —  Ed. 


SECT.  II.j  REGINA   V.   THURBORN.  559 

should  reserve  the  case  for  further  consideration.  Upon  conferring 
with  Maule,  J.,  the  learned  Baron  was  of  opinion  that  the  original 
taking  was  not  felonious,  and  that  in  the  subsequent  disposal  of  it 
tliere  was  no  taking,  and  he  therefore  declined  to  pass  sentence,  and 
ordered  the  jjrisoner  to  be  discharged,  on  entering  into  his  own  recog- 
nizance to  appear  wlien  called  upon. 

On  the  30th  of  April,  a.  d.  1849,  the  following  judgment  was  read 
by  Parke,  B  :  — 

A  case  was  reserved  by  Parke,  B.,  at  the  last  Huntingdon  Assizes. 
It  was  not  argued  by  counsel,  but  the  judges  who  attended  the  sitting 
of  the  court  after  Michaelmas  Term,  1848,  namely,  the  L.  C.  Baron, 
Patteson,  J.,  Rolfe,  B.,  Cresswell,  J.,  Williams,  J.,  Coltman,  J.,  and 
Parke,  B.,  gave  it  much  consideration  on  account  of  its  importance, 
and  the  frequency  of  the  occurrence  of  cases  in  some  degree  similar  in 
the  administration  of  the  criminal  law,  and  the  somewhat  obscure  state 
of  the  authorities  upon  it.     [The  learned  Baron  here  stated  the  case.] 

In  order  to  constitute  the  crime  of  larcen}',  there  must  be  a  taking  of 
the  chattel  of  another  aninio  furandi,  and  against  the  will  of  the 
owner.  This  is  not  the  full  definition  of  larceny,  but  so  much  only  of 
it  as  is  necessary  to  be  referred  to  for  the  present  purpose  ;  J23;  the  term 
animo  furandi  is  to  be  understood  the  intention  to  take,  not  a  partic- 
ular temporary,  but  an  entire  dominion  over  the  chattel,  without  a 
cqlor^.of  right.  As  the  rule  of  law  founded  on  justice  and  reason  is 
that  actus  non  facit  reum  nisi  mens  sit  rea,  the  guilt  of  the  accused 
must  depend  on  the  circumstances  as  they  appear  to  him,  and  the  crime 
of  larceny  cannot  be  committed  unless  the  goods  taken  appear  to  have 
an  owner,  and  the  partj'  taking  must  know  or  believe  that  the  taking  is 
against  the  will  of  that  owner. 

In  the  earliest  times  it  was  held  that  chattels  which  were  apparently 
■without  an  owner,  "  nuUius  in  bonis,"  could  not  be  the  subject  of 
larcen}'.  Stamford,  one  of  the  oldest  authorities  on  criminal  law,  who 
was  a  judge  in  the  reign  of  Philip  and  Mary,  says,  B.  1  ch.  16,  "  Treas- 
ure trove,  wreck  of  the  sea,  waif  or  stray,  taken  and  carried  away  is 
not  felony."  "Quia  dominus  rerum  non  apparet,  ideo  cujus  sunt 
incertum  est."  For  this  he  quotes  Fitz.  Abr.  Coron.  p.  187,  2G5  ;  these 
passages  are  taken  from  22  Ass.  99;  22  Ed.  III.,  and  mention  only 
"treasure  trove,"  "wreck,"  and  "waif"  and  Fitz.  says  the  punish- 
ment for  taking  such  is  not  the  loss  of  life  or  limb.  The  passage  in  3 
Inst.  108,  goes  beyond  this;  Lord  Coke  mentions  three  circumstances 
as  material  in  larceny :  first,  the  taking  must  be  felonious,  which  he 
e3)lains ;  secondly,  it  must  be  an  actual  taking,  which  he  also  ex- 
plains ;  and  thirdly,  "  it  is  not  by  trover  or  finding  ;  "  he  then  proceeds 
as  follows:  "If  one  lose  his  goods  and  another  find  them,  though  he 
convert  them  'animo  furandi,'  to  his  own  use,  it  is  not  larceny,  for  the 
first  taking  is  lawful.  So  if  one  find  treasure  trove,  or  waif  or  stray 
(here  '  wreck '  is  omitted  and  '  stray '  introduced),  and  convert  them  iit 
supra,  it  is  no  larcenj",  both  in  respect  of  the  finding,  and  that  '  dom- 


560  REGINA   V.   THURBORN.  [CHAP.  VIII. 

inus  rerum  non  apparet.'"  The  only  authority  given  is  that  before 
mentioned  :   22  Ass.  99  ;   22  Ed.  III. 

Now  treasure  trove  and  waif  seem  to  be  subject  to  a  different  con- 
struction from  goods  lost.  Treasure  trove  is  properly  money  supposed 
to  have  been  hidden  by  some  owner,  since  deceased,  the  secret  of  the 
deposit  having  perished,  and  tlierefore  belongs  to  the  Crown  ;  as  to 
waif,  the  original  owner  loses  his  right  to  the  property  by  neglecting  to 
pursue  the  thief.  The  very  circumstances  under  which  these  are 
assumed  to  have  been  taken  and  converted  shew  that  they  could  not 
be  taken  from  any  one,  there  being  no  owner.  Wreck  and  stray  are 
not  exactly  on  the  same  footing  as  treasure  trove  and  waif;  wreck  is 
not  properly  so  called  if  the  real  owner  is  known,  and  it  is  not  for- 
feited until  after  a  year  and  a  day. 

The  word  "  estray  "  is  used  in  the  books  in  different  senses,  as  may 
be  seen  in  Com.  Dig.  Waife,  F.,  where  it  is  used  in  the  sense  of  cattle 
forfeited  after  being  in  a  manor  one  year  and  one  day  without  chal- 
lenge, after  being  proclaimed,  where  the  property  vests  in  tiie  Crown, 
or  its  grantee  of  estrays  ;  and  also  of  cattle  straying  in  the  manor, 
before  they  are  so  forfeited.  Blackstone,  vol.  2,  5G1,  Stephens'  ed., 
defines  estrays  to  be  "  such  valuable  animals  as  are  found  wandering 
in  any  manor  or  lordship,  and  no  man  knoweth  the  owner  of  them,  in 
which  case  the  law  gives  them  to  the  Sovereign." 

In  the  passage  in  Stamford  no  doubt  the  word  is  used,  not  exclu- 
sively in  the  former  sense,  but  generally  as  to  all  stray  cattle  not 
seized  by  the  lord.  Now  treasure  trove  and  waif,  properly  so  called, 
are  clearly  "  bona  vacantia,  nullius  in  bonis,"  and  but  for  the  preroga- 
tive would  belong  to  the  first  finder  absolutely'. 

"  Cum  igitur  thesaurus  in  nullius  bonis  sit,  et  antiquitus  de  jure 
naturali  esset  inventoris,  nunc  de  jure  gentium  efficitur  ipsius  domini 
regis."  Bracton,  Coron.  L.  3,  c.  3,  p.  126.  Wreck  and  stray,  in  the 
sense  we  ascribe  to  those  words,  are  not  in  the  same  situation,  for  the 
right  of  the  owner  is  not  forfeited  until  the  end  of  a  year  and  a  day ; 
but  Lord  Coke,  in  Constable's  case,  5  Rep.  108  a,  treats  wreck  also  as 
"nullius  in  bonis;"  and  estra^'s,  "animalia  vagantia,"  he  terms 
"  vacantia,"  because  none  claims  the  property.  Wreck  and  estray, 
however,  before  seizure,  closely  resemble  goods  lost,  of  which  the 
owner  has  not  the  actual  possession,  and  afford  an  analogy  to  which 
Lord  Coke  refers  in  the  passage  above  cited. 

Whether  Lord  Coke  means,  what  the  language  at  first  sight  imports, 
that  under  no  circumstances  could  the  taker  of  goods  really  lost  and 
found  be  guilty  of  larcen}-,  is  not  clear ;  but  the  passage  is  a  complete 
and  satisfactor}'  authority  that  a  person  who  finds  goods  which  are 
lost  ma}'  convert  them  anitno  furandi  under  some  circumstances  so  as 
not  to  be  guilt}'  of  larcen}'.  The  two  reasons  assigned  by  him  are,  that 
the  person  taking  has  a  right  in  respect  of  the  finding,  and  also  that 
the}'  are  apparently  without  an  owner,  "  dominus  rerum  non  apparet,'' 
an  owner,  "  or  "  the  owner  does  not  appear. 


SECT.  II.]  REGINA.  V.   THURBORN.  561 

The  first  of  these  reasons  has  led  to  the  opinion  that  the  real  mean- 
ing of  Lord  Coke  was  not  that  every  finder  of  lost  goods  who  takes 
a?ii?no  furandi  is  not  guilty  of  felony,  bnt  that  if  one  finds,  and  inno- 
centl}'  takes  possession,  meaning  to  keep  for  the  real  owner,  and  after- 
wards changes  his  mind  and  converts  to  his  own  use,  he  is  not  a  felon, 
on  the  principle  that  Lord  Coke  had  previously  laid  down,  viz.,  that 
"  the  intent  to  steal  must  be  when  the  thing  stolen  cometh  to  his 
possession,  for  if  he  hath  the  possession  of  it  once  lawfully,  though  he 
hath  animum  furandi  afterwards,  and  carr3'eth  it  away  afterwards,  it 
is  no  larceny  ;  "  and  Lord  Coke  also  cites  Glanville,  "  Furtum  non  est 
ubi  initium  habet  detentionis  per  dominium  rei." 

It  is  said  therefore  that  the  case  of  finding  is  an  instance  of  this,  — 
beginning  with  lawful  title,  which  consequently  cannot  become  a  felony 
b}'  subsequent  conversion  ;  but  if  it  be  originally  taken,  not  for  tlie  true 
owner,  but  with  intent  to  appropriate  it  to  his  own  use,  it  is  a  felony  ; 
and  of  this  opinion  the  commissioners  for  the  amendment  of  the  crimi* 
nal  law  appear  to  have  been,  as  stated  in  their  first  report. 

This  opinion  appears  to  us  not  to  be  well  founded  ;  for  Lord  Coke 
puts  the  case  of  lost  goods  on  the  same  footing  as  waif  and  treasure 
trove,  which  are  reall}'  hona  vacantia,  goods  without  an  owner,  and 
with  respect  to  which  we  apprehend  that  a  person  would  not  be  guilty 
of  larceny,  though  he  took  originally  animo  furandi,  that  is,  with  tha 
intent,  not  to  take  a  partial  or  temporar}-  possession,  but  to  usurp  the 
entire  dominion  over  them;  and  the  previous  observations  have  refer- 
ence to  cases  in  which  the  original  possession  of  the  chattel  stolen  is 
with  the  consent  of  or  by  contract  with  the  owner.  But  any  doubt  on 
this  question  is  removed  by  what  is  said  by  Lord  Hale,  1  P.  C.  506  : 
"  If  A.  find  the  purse  of  B.  in  the  highway  and  take  and  carry  it  away, 
and  hath  all  the  circumstances  that  may  prove  it  to  be  done  animo 
furandi,  as  denying  or  secreting  it,  yet  it  is  not  felony.  The  like  in 
case  of  taking  of  a  wreck  or  treasure  trove,"  (citing  22  Ass.  99),  "  or  a 
waif  or  stray."  Lord  Hale  clearly  considers  that  if  lost  goods  are 
taken  originally  animo  furandi,  in  the  sense  a-bove  mentioned,  the 
taker  is  not  a  felon  ;  and  when  it  is  considered  that  by  the  common 
law,  larceny  to  the  value  of  above  twelve  pence  was  punishable  by 
death,  and  that  the  quality  of  the  act  in  taking  animo  furandi  goods 
from  the  possession  of  the  owner,  differs  greatly  from  that  of  taking 
them  when  no  longer  in  his  possession,  and  quasi  derelict,  in  its 
injurious  effect  on  the  interests  of  society  (the  true  ground  for  the 
punishment  of  crimes),  it  is  not  surprising  that  such  a  rule  should  be 
estalilished,  and  it  is  founded  in  strict  justice  ;  for  the  cases  of  abstrac- 
tion of  lost  property  being  of  rare  occurrence,  when  compared  with 
the  frequent  violations  of  property  in  the  possession  of  an  owner,  there 
was  no  need  of  so  severe  a  sanative,  and  the  civil  remedy  might  be 
deemed  amply  sufficient.  Hawkins,  B.  1,  ch.  19,  s.  3,  Curwood's  ed., 
says  :  "  Our  law,  which  punishes  all  theft  with  death,  if  the  thing  stolen 
be  above  the  value  of  twelve  pence,  and  with  corporal  punishment  if 


562  EEGINA   V.   THURBORN.  [CHAP,  VIII. 

under,  rather  chooses  to  deal  with  them  (e.  g.,  cases  of  finding,  and 
of  appropriating  by  bailees)  as  civil  than  criminal  offences,  perhaps 
for  this  reason,  in  the  case  of  goods  lost,  because  the  party  is  not  much 
ao-grieved  where  nothing  is  taken  but  what  he  had  lost  before."  It 
cannot  indeed  be  doubted  that  if  at  this  day  the  punishment  of  death 
was  assigned  to  larceny  and  usually  carried  into  effect,  the  appropria- 
tion of  lost  goods  would  never  have  been  held  to  constitute  that  offence  ; 
and  it  is  certain  that  the  alteration  of  punishment  cannot  alter  the 
definition  of  the  offence.  To  prevent,  however,  the  taking  of  goods 
from  being  larceny,  it  is  essential  that  the}'  should  be  presumably  lost ; 
that  is,  that  they  should  be  taken  in  such  a  place  and  under  such  cir- 
cumstances as  that  the  owner  would  be  reasonably  presumed  by  the 
taker  to  have  abandoned  them,  or  at  least  not  to  know  where  to  find 
them.  Therefore  if  a  horse  is  found  feeding  on  an  open  common  or  on 
the  side  of  a  public  road,  or  a  watch  found  apparently  hidden  in  a  hay- 
stack, the  taking  of  these  would  be  larceny,  because  the  taker  had  no 
right  to  presume  that  the  owner  did  not  know  where  to  find  them  ;  and 
consequently  had  no  right  to  treat  them  as  lost  goods.  In  the  present 
case  there  is  no  doubt  that  the  bank-note  was  lost,  the  owner  did  not 
know  where  to  find  it,  the  prisoner  reasonably  believed  it  to  be  lost,  he 
had  no  reason  to  know  to  whom  it  belonged  ;  and  therefore,  though  he 
took  it  with  the  intent  not  of  taking  a  partial  or  temporary,  but  the 
entire  dominion  over  it,  the  act  of  taking  did  not,  in  our  opinion,  con- 
stitute the  crime  of  larceny.  Whether  the  subsequent  appropriation  of 
it  to  his  own  use  by  changing  it,  with  the  knowledge  at  that  time  that 
it  belonged  to  the  prosecutor,  does  amount  to  that  crime,  will  be  after- 
wards considered. 

It  appears,  however,  that  goods  which  do  fall  within  the  category  of 
lost  goods,  and  which  the  taker  justly  believes  to  have  been  lost,  ma}' 
be  taken  and  converted  so  as  to  constitute  the  crime  of  larceny,  when 
tiie  party  finding  may  be  presumed  to  know  the  owner  of  them,  or 
there  is  any  mark  upon  them,  presumably  known  by  him,  by  which  the 
owner  can  be  ascertained.  Whether  this  is  a  qualification  introduced 
in  modern  times  or  which  always  existed,  we  need  not  determine.  It 
may  have  proceeded  on  the  construction  of  the  reason  of  the  old  rule, 
"quia  dominus  rerum  non  apparet,  ideo  cujus  sunt  incertum  est,"  and 
the  rule  is  held  not  to  apply  when  it  is  certain  who  is  the  owner ;  but 
the  authorities  are  many,  and  we  believe  this  qualification  has  been 
generally  adopted  in  practice,  and  we  must  therefore  consider  it  to  be 
the  established  law.  There  are  many  reported  cases  on  this  subject, 
some  where  the  owner  of  the  goods  may  be  presumed  to  be  known, 
from  the  circumstances  under  which  they  are  found ;  amongst  these  are 
mentioned  the  cases  of  articles  left  in  hackney  coaches  by  passengers, 
which  the  coachman  appropriates  to  his  own  use,  or  a  pocket-book, 
found  in  a  coat  sent  to  a  tailor  to  be  repaired,  and  abstracted  and 
opened  by  him.  In  these  cases  the  appropriation  has  been  held  to  be 
larceny.     Perhaps   these   cases   might   be    classed   amongst   those  in 


SECT.  II,]  REGINA    V.    THURIJORN.  563 

which  the  taker  is  not  justified  in  conchiding  that  the  goods  were  lost, 
because  there  is  little  doubt  he  must  have  believed  that  the  owner 
would  know  where  to  find  them  again,  and  he  had  no  pretence  to  con- 
sider them  abandoned  or  derelict.  Some  cases  appear  to  have  been 
decided  on  the  ground  of  bailment  determined  by  breaking  bulk, 
which  would  constitute  a  trespass,  as  Wynne's  case,  Leach  C.  C. 
460,  but  it  seems  difficult  to  ajjply  that  doctrine  which  belongs  to  bail- 
ment, where  a  special  property  is  acquired  b}-  contract,  to  any  case  of 
goods  merely  lost  and  found,  where  a  special  property  is  acquired  by 
finding. 

The  appropriation  of  goods  by  the  finder  has  also  been  held  to  be 
larceu}'  where  the  owner  could  be  found  out  bv  some  mark  on  them,  as 
in  the  case  of  lost  notes,  checks,  or  bills,  with  the  owner's  name  upon 
them. 

This  subject  was  considered  in  the  case  of  Merry  r.  Green,  7  M.  & 
W.  623,  in  which  the  Court  of  Exchequer  acted  upon  the  authority  of 
these  decisions  ;  and  in  the  argument  in  that  case  difficulties  were  sug- 
gested, whether  the  crime  of  larcenj'  could  be  committed  in  the  case  of 
a  marked  article,  a  check  for  instance,  with  the  name  of  the  owner 
on  it,  where  a  person  originally  took  it  up,  intending  to  look  at  it  and 
see  who  was  the  owner,  and  then,  as  soon  as  he  knew  whose  it  was, 
took  \\,  animo  furandi  ;  as,  in  order  to  constitute  a  larcen}-,  the  taking 
must  be  a  trespass  ;  and  it  was  asked  when  in  such  a  case  the  trespass 
was  committed.  In  answer  to  that  inquiry  the  dictum  attributed  to 
rae  in  the  Report  was  used  :  that  in  such  a  case  the  trespass  must  be 
taken  to  have  been  committed,  not  when  he  took  it  up  to  look  at  it 
and  see  whose  it  was,  but  afterwards,  when  he  appropriated  it  to  his 
own  use  animo  furandi. 

It  is  quite  a  mistake  to  suppose,  as  Mr.  Greaves  has  done  (vol.  2, 
c.  14),  that  I  meant  to  laj-  down  the  proposition  in  the  general  terms 
contained  in  the  extract  from  the  Report  of  the  case  in  7  M.  &  W., 
which,  taken  alone,  seems  to  be  applicable  to  ever}'  case  of  finding 
unmarked,  as  well  as  marked  property.  It  was  meant  to  appl}'  to  the 
latter  only. 

The  result  of  these  authorities  is,  that  the  rule  of  law  on  this  sub- 
ject seems  to  be,  that  if  a  man  find  goods  that  have  been  actually  lost, 
or  are  reasonably  supposed  by  him  to  have  been  lost,  and  appropriates 
tliem  with  intent  to  take  the  entire  dominion  over  them,  really  believ- 
ing when  he  takes  them  that  the  owner  cannot  be  found,  it  is  not 
larceny.  But  if  he  takes  them  with  the  like  intent,  though  lost,  or 
reasonabh'  supposed  to  be  lost,  but  reasonabh-  believing  that  the  owner 
can  be  found,  it  is  larceny. 

In  applying  this  rule,  as  indeed  in  the  application  of  all  fixed  rules, 
questions  of  some  nicety  ma}'  arise,  but  it  will  generall}'  be  ascertained 
whether  the  person  accused  had  reasonable  belief  that  the  owner  could 
be  found,  b}'  evidence  of  his  previous  acquaintance  with  the  ownership 
of  the  particular  chattel,  the  place  where  it  is  found,  or  the  nature  of 


564  REGINA   V.    PRESTON.  [CHAP.  VIII. 

the  marks  upon  it.     In   some   cases  it  would  be  apparent,  in  otheif 
appear  only  after  examination. 

It  would  probably  be  presumed  that  the  taker  would  examine  the 
chattel  as  an  honest  man  ought  to  do,  at  the  time  of  taking  it,  and  if 
he  did  not  restore  it  to  the  owner,  the  jury  might  conclude  that  he  took 
it,  when  he  took  complete  possession  of  it,  animo  furandi.  The  mere 
taking  it  up  to  look  at  it  would  not  be  a  taking  possession  of  the 
chattel. 

To  apply  these  rules  to  the  present  case  :  the  first  taking  did  not 
amount  to  larceny-,  because  the  note  was  really  lost,  and  there  was  no 
mark  on  it  or  other  circumstance  to  indicate  then  who  was  the  owner, 
or  that  he  might  be  found,  nor  any  evidence  to  rebut  the  presumption 
that  would  arise  from  the  finding  of  the  note  as  proved,  that  he 
believed  the  owner  could  not  be  found,  and  therefore  the  original 
taking  ^vas  not  felonious ;  and  if  the  prisoner  had  changed  the  note  or 
otherwise  disposed  of  it  before  notice  of  the  title  of  the  real  owner,  he 
clearly  would  not  have  been  punishable  ;  but  after  the  prisoner  was  in 
possession  of  the  note,  the  owner  became  known  to  him,  and  he  then 
appropriated  it  animo  furandi,  and  the  point  to  be  decided  is  whether 
that  was  a  felony. 

Upon  this  question  we  have  felt  considerable  doubt. 

If  he  had  taken  the  chattel  innocently,  and  afterwards  appropriated 
it  without  knowledge  of  the  ownership,  it  would  not  have  been  larcen^^ ; 
nor  would  it,  we  think,  if  he  had  done  so,  knowing  who  was  the  owner, 
for  he  had  the  lawful  possession  in  both  cases,  and  the  conversion 
would  not  have  been  a  trespass  in  either.  But  here  the  original  taking 
was  not  innocent  in  one  sense,  and  the  question  is  does  that  make  a 
diflference?  We  think  not;  it  was  dispunishable  as  we  have  ah'eady 
decided,  and  though  the  possession  was  accompanied  by  a  dishonest 
intent,  it  was  still  a  lawful  possession  and  good  against  all  but  the  real 
owner,  and  the  subsequent  conversion  was  not  therefore  a  trespass  in 
this  case  more  than  the  others,  and  consequently  no  larceny. 

We  therefore  think  that  the  conviction  was  wrong.  ^ 


REGINA  V.   PRESTON. 
Crown  Case  Reserved.     1851. 

{Reported  5    Cox  C.  C.  390.] 

The  following  case  was  reserved  by  the  Recorder  of  Birmingham  :  — 
Michael  Preston  was  tried  before  me,  at  the  last  Michaelmas  Ses- 

1  Ace.  Reg.  V.  Scully,  1  Cox  C.  C.  189;  Reg.  v.  Dixon,  7  Cox  C.  C  35;  Reg. 
V.  Shea,  7  Cox  C.  C.  147;  Reg.  v.  Christopher,  8  Cox  C.  C.  91  ;  Reg.  r.  Gkde,  11 
Cox  C.  C.  103;  Reg.  ^^  Deaves,  11  Cox  C.  C  227;  Bailey  v.  State,  52  Ind.  462; 
Wolfington  V.  State,  53  lud.  343  ;  State  v.  Dean,  49  la.  73. — Ed. 


SECT.  II.J  KEGINA   V,    PRESTON.  565 

sions  for  the  borough  of  Birmingham,  upon  an  indictment  which 
charged  him  in  the  1st  count  with  stealing,  and  in  the  2d  count 
with  feloniously  receiving,  a  £50  note  of  the  Bank  of  England,  It 
was  proved  that  the  prosecutor,  Mr.  CoUis,  of  Birmingham,  received 
the  note  in  question,  with  others,  on  Saturday,  the  ISth  of  October, 
from  a  Mr.  Ledsam,  who,  before  he  handed  it  to  the  prosecutor,  wrote 
on  the  back  of  it  the  words,  "  Mrs.  CoUis."  It  was  further  proved  that 
Collis  was  a  ver}'  unusual  surname  in  Birmingham,  and  almost,  if  not 
quite  confined  to  the  family  of  the  prosecutor,  a  well-known  master 
manufacturer.  About  four  or  five  o'clock  the  same  afternoon  the  prose- 
cutor accidentally  dropped  the  notes  in  one  of  the  public  streets  of 
Birmingham,  and  immediately  gave  information  of  his  loss  to  the 
police,  and  also  caused  handbills,  oflfering  a  reward  for  their  recover^-, 
to  be  printed  and  circulated  about  the  town.  On  Monda}'  the  20tli, 
about  three  o'clock  in  the  afternoon,  the  prisoner,  who  had  been 
living  in  Birmingham  fourteen  3ears,  and  keeping  a  shop  there,  went 
to  one  of  the  police  stations,  and  inquired  of  a  policeman  if  there  was 
not  a  reward  publicly  offered  for  some  notes  that  had  been  lost,  and 
whether  their  numbers  were  known,  stating  that  he  was  as  likely  as 
an}'  person  to  have  them  offered  to  him,  and  if  he  heard  anything  of 
them  he  would  let  the  police  know.  He  also  inquired  if  the  policeman 
could  give  him  a  description  of  the  person  who  was  supposed  to  have 
found  them,  and  the  policeman  gave  him  a  written  description  of  such 
person,  who  was  described  therein  as  a  tall  man.  Afterwards,  between 
three  and  four  o'clock  on  the  same  afternoon,  the  prisoner  went  to  the 
shop  of  Mr.  Nicklej',  in  Birmingham,  and,  after  inquiring  if  he 
(Nickley)  had  heard  of  the  loss  of  a  £50  note,  stated  that  he  (the 
prisoner)  thought  he  knew  parties  who  had  found  one  ;  and  he  asked 
Nickley  whether  the  finders  would  be  justified  in  approijriating  it  to 
their  own  use,  to  which  Nickley  replied  that  they  would  not.  At 
four  o'clock  the  same  afternoon  the  prisoner  changed  the  note,  and 
was,  later  in  the  same  evening,  found  in  possession  of  a  consider- 
able quantit}'  of  gold,  with  regard  to  which  he  gave  several  false 
and  inconsistent  accounts.  He  was  then  taken  into  custody,  and 
on  the  following  da}',  October  21,  stated  to  a  constable  that  when 
he  was  alone  in  his  own  house  on  Sunda}',  a  tall  man,  whom  he  did 
not  know,  came  in  and  offered  him  a  £50  note,  for  which  he  (the 
prisoner)  gave  him  fift}'  sovereigns.  The  police  officers  previously 
told  the  prisoner  that  the}'  were  in  possession  of  information  that  one 
Tay,  who  was  known  to  the  prisoner,  had  found  the  note,  but  Ta}'  was 
not  called,  nor  was  any  evidence  given  as  to  the  part  (if  an})  which 
he  took  in  the  transaction.  Upon  these  facts  I  directed  the  jury  that 
the  important  question  for  them  to  consider  was,  at  what  time  the 
prisoner  first  resolved  to  appropriate  the  note  to  his  own  use.  If  they 
arrived  at  the  conclusion  that  the  prisoner  either  knew  the  owner,  or 
reasonably  believed  that  the  owner  could  be  found  at  the  time  when  he 
first  resolved  to  appropriate  it  to  his  own  use,  that  is,  to  exercise  com- 


566  REGINA   V.    PRESTON.  [CHAP.  VIII 

plete  dominion  over  it,  then  he  was  guilt}-  of  larceny.  If,  on  the  other 
hand,  he  had  formed  the  resolution  of  appropriating  it  to  his  own  use 
before  he  knew  the  owner,  or  had  a  reasonable  belief  that  the  owner 
could  be  found,  then  he  was  not  guilty  of  larceny.  I  also  told  the  jur}' 
that  there  was  no  evidence  of  any  other  person  having  possession  of  the 
note  after  it  was  lost,  except  the  prisoner,  but  that  even  though  the 
prisoner  might  not  be  the  original  finder,  still,  if  he  were  the  first 
person  who  acted  dishonestly  with  regard  to  it,  and  if  he  began  to  act 
dishonestly  by  forming  the  resolution  to  keep  it  for  his  own  use  after 
he  knew  the  owner,  or  reasonably  believed  that  the  owner  could  be  found, 
he  would  be  guilty  of  larceny.  The  jury  found  the  prisoner  guilty 
upon  the  1st  count,  and  I  request  the  opinion  of  the  judges  as  to 
the  validity  of  the  conviction.  The  prisoner  was  discharged  on  the 
recognizances  of  himself  and  two  sureties,  to  appear  and  receive 
judgment  at  the  next  sessions. 

Bittleston,^  for  the  Crovvn.  The  case  of  R.  v.  Thuvborn  was  brought 
under  the  consideration  of  the  Recorder ;  and  construing  his  direction 
with  reference  to  the  facts  stated,  it  does  in  substance  follow  the  rule 
there  laid  down.  It  only  means  that  the  prisoner  would  be  guilt}'  of 
larceny  if,  when  he  first  took  complete  possession  of  the  note  animo 
farandi,  he  then  knew  or  had  the  means  of  knowing  the  owner. 
[Aldekson,  B.  —  The  direction  does  not  exclude  the  supposition  that 
the  prisoner  in  the  first  instance  received  the  note  with  an  honest 
intention,  but  afterwards  altered  his  mind,  and  in  a  day  or  two  resolved 
to  appropriate  it  to  his  own  use.  But  m\'  brother  Parke,  in  Thurborn's 
case,  decided  that  the  dishonest  intention  must  exist  as  soon  as  the 
finder  has  taken  the  chattel  into  his  possession  so  as  to  know  what 
it  is.]  It  is  conceded  that  the  very  first  moment  of  taking  is  not 
that  at  which  the  animus  furandi  and  knowledge  of  the  owner  must 
exist  to  constitute  larceny  ;  because  the  chattel  must  be  taken  into  the 
hand  to  ascertain  what  it  is.  The  original  possession,  therefore,  must 
necessarily'  be  lawful  in  ever}'  case  ;  and  if  the  dishonest  intention 
arising  at  the  next  minute  may  make  the  finder  guilty  of  larcenv,  why 
may  not  the  same  dishonest  intention  arising  afterwards  have  the  same 
effect?  What  is  a  proper  time  for  examining  the  thing  may  var}'  in 
different  cases  ;  and,  if  a  man  takes  time  to  make  inquiries,  for  the 
purpose  of  satisfiying  himself  whether  he  can  keep  the  chattel  without 
risk  of  discover}',  and  ultimately  resolves  to  appropriate  it,  is  he  to  be 
held  not  guilty  of  larceny  because  he  did  not  immediately  make  up  his 
mind  to  deprive  the  owner  of  it?  It  is  stated  generally  in  the  text- 
books (1  Bl.  Com.  295,  5th  ed.)  that  the  finder  of  lost  goods  has  a 
special  property  in  them  ;  and  so,  according  to  Armory  v.  Delamirie 
(1  Stra.  505),  he  has  against  all  but  the  true  owner ;  but  as  against  the 
true  owner  he  has  no  property  whatever ;  and  it  is  submitted,  at  all 
events  with  regard  to  marked  property,  that  as  between  the  finder  and 

^  The  argument  of  O'Brien  for  the  prosecution  is  omitted. 


SECT.  II.]  KEGINA    V.   PKESTON.  567 

the  loser,  the  possession  of  the  former  is,  in  law,  that  of  the  latter,  so 
long  as  the  latter  intends  to  act  honestly.  He  holds  merely  for  the 
true  owner ;  he  had  a  bare  custody  :  but  as  soon  as  he  resolves  to 
appropriate  the  goods  to  his  own  use  he  then  converts  that  lawful 
custod\'  into  an  unlawful  possession ;  he  commits  a  trespass ;  and 
IS  guilty  of  larceny,  according  to  that  class  of  cases  where  the  owner, 
by  delivering  goods  to  the  prisoner,  does  not  part  with  the  possession, 
but  gives  him  the  charge  or  custody  of  them  only.  [Alderson,  B.  — 
"What  do  you  sa}'  to  tliat  part  of  the  direction  which  supposes  that  the 
prisoner  was  not  the  original  finder?]  It  makes  no  difference  whether 
the  prisoner  himself  picked  up  the  lost  note,  or  whether  the  person 
who  did,  brought  it  to  him  and  informed  him  of  all  the  circumstances. 
That  intermediate  person  might  act  with  perfect  honesty ;  and  the 
prisoner  receiving  it  under  those  circumstances  would  be  in  the 
situation  of  a  finder.  [Martin,  B.  —  Suppose  a  man  takes  an  umbrella 
b}-  mistake,  and,  after  keeping  it  for  a  few  days,  finds  the  owner,  but 
does  not  return  it;  is  there  a  felonious  taking?  Lord  Campbell, 
C.  J.  — •  You  must  contend  that  there  is.]  Yes,  there  would  be  no  change 
in  the  possession  until  the  dishonest  intention  arose.  [Lord  Campbell, 
C.  J.  —  Can  there  be  a  mental  larceny?  Aldersox,  B.  —  There  must  be 
a  taking,  and  it  must  be  a  taking  animo  furandi;  but  the  taking  and 
the  intent  are  distinct  things.]  In  tlie  cases  of  carriers,  where  the 
bailment  is  determined  b}-  breaking  bulk,  there  is  in  truth  no  fresh 
taking.  The  carrier  has  possession  of  all  the  goods  delivered  to  him 
for  the  purpose  of  carriage  ;  but  when  he  begins  to  deal  dislionestly 
with  them  there  is  a  constructive  taking ;  and  Parke,  B.,  from  the 
observation  which  he  makes  on  Wynne's  case,  in  Merrj'  v.  Green, 
seems  to  have  thought  so. 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  can- 
not be  supported.  Larcen}^  supposes  a  taking  animo  furandi.  There 
must  always  be  a  taking ;  but  in  the  ^Dresent  case  it  is  quite  consistent 
with  the  direction  of  the  learned  Recorder  that  the  prisoner  might  be 
guilt}'  of  larceny  though,  when  he  took  possession  of  it,  with  a  full 
knowledge  of  the  nature  of  tlie  chattel,  he  honestly  intended  to  return 
it  to  the  owner  whensoever  he  should  be  found ;  because  he  puts 
it  that  the  important  question  is,  at  what  time  the  prisoner  first 
resolved  to  appropriate  it  to  his  own  use.  But  when  was  the  taking? 
It  is  said  that  whenever  he  changed  his  mind,  and  formed  the  dishonest 
purpose  of  appropriating  the  note  to  his  own  use,  that  then  he  took  it 
constructively  from  the  possession  of  the  owner;  but  that  dishonest 
purpose  ma}'  have  first  come  into  his  mind  when  he  was  lying  in  bed 
at  a  distance  of  many  miles  from  the  place  where  the  note  was.  It 
seems  to  me  that  that  operation  of  the  mind  cannot  be  considered  a 
taking,  and  that,  as  there  was  no  taking  except  the  original  taking, 
which  might  have  been  lawful,  the  conviction  must  be  reversed.  It  is 
unnecessary'  to  go  into  authorities  upon  this  subject,  after  the  elaborate 
judgment  of  my  brother  Parke  in  Thurborn's  case. 


568  EEGINA   V.   WEST.  [CHAP.  VIII. 

Alderson,  B.  In  order  to  constitute  larceny,  there  must  be  a  taking, 
as  well  as  an  intention  to  steal.  The  difficulty  I  feel  in  this  case  is  to 
know  how  a  taking,  honest  at  first,  can  be  converted  into  a  dishonest 
taking  by  the  subsequent  alteration  of  intention.  It  is  clear,  in  this 
case,  that  the  learned  Recorder  left  it  open  to  the  jury  to  convict  the 
prisoner,  even  if  they  thought  that  at  first  he  took  the  note  hon- 
estly, but  that  he  afterwards  changed  his  mind,  then  knowing  the 
owner ;  and  it  is  argued  that  the  formation  of  the  dishonest  intention 
alters  the  character  of  the  possession,  though  the  taking  may  have 
been  a  week  before  ;  but  I  think  that  that  is  a  degree  of  refinement 
which  would  destroy'  the  simplicity  of  the  criminal  law. 

The  other  judges  concurred. 

Conviction  quashed-^ 


BEGIN  A  V.  WEST. 
Crown  Case  Reserved.     1854. 

[Reported  Dearsley  C.  C.  402.] 

Jervis,  C.  J.^  The  question  is  whether,  under  the  circumstances 
stated  in  this  case,  .the  prisoner  was  properl}-  convicted  of  larceny, 
and  we  are  all  of  opinion  that  she  was  properly  convicted.  The 
prisoner  keeps  a  stall  in  the  Leicester  market.  The  prosecutor  went 
to  that  stall,  left  his  purse  there,  and  went  away.  The  purse  was 
pointed  out  to  the  prisoner  b3'  another  person,  and  she  then  put  it  in 
her  pocket,  and  treated  it  as  her  own,  and  on  the  prosecutor  returning 
to  the  stall  and  asking  for  the  purse,  she  denied  all  knowledge  of  it. 
Two  questions  were  left  to  the  jury :  first,  did  the  prisoner  take  the 
\^  purse  knowing  that  it  was  not  her  own,  and  intending  to  appropriate 

it  to  her  own  use?  This  the  jury  said  she  did.  Secondly,  did  the 
prisoner  then  know  who  was  the  owner  of  the  purse?  This  the  jury 
said  she  did  not.  If  there  had  been  any  evidence  that  the  purse 
and  its  contents  were  lost  property,  properly  so  speaking,  and  the 
jury  had  so  found,  the  jury  ought  further  to  have  been  asked  whether 
the  prisoner  had  reasonable  means  of  finding  the  owner,  or  reasonably 
believed  that  the  owner  could  not  be  found  ;  but  there  is  in  this  case 
no  reason  for  supposing  that  the  property  was  lost  at  all,  or  that  the 
prisoner  thought  it  was  lost.  On  the  contrary-,  the  owner,  having  left 
it  at  the  stall,  would  naturally  return  there  for  it  when  he  missed  it. 

There  is  a  clear  distinction  between  property  lost  and  property 
merely  mislaid,  put  down,  and  left  b}'  mistake,  as  in  this  case,  under 
circumstances  which  would  enable  the  owner  to  know  the  place  where 

1  Ace.  Reg  V.  Matthews,  12  Cox  C.  C.  489.  But  see  Beatty  v.  State,  61  Miss. 
18  — Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.    II.]  REGINA   V.   KOWE.  569 

be  had  left  it,  and  to  which  he  would  naturally  return   for  it.     The 
question  as  to  possession  by  finding,  therefore,  does  not  arise. 

The  other  learned  judges  concurred.^  Conviction  affirmed. 


REGINA  V.  ROWE. 
Crown  Case  Reseuved.     1859. 

[Reported  Bell  C.  C.  93.''i] 

The  following  case  was  reserved  by  the  Chairman  of  the  Glamorgan- 
shire Quarter  Sessions :  — 

At  the  Glamorganshire  Midsummer  Quarter  Sessions,  1858,  William 
Rowe  was  indicted  for  stealing  16  cwt.  of  iron  of  the  goods  and  chat- 
tels of  The  Company  of  Proprietors  of  the  Glamorganshire  Canal 
Navigation. 

It  appeared  by  the  evidence  that  the  iron  had  been  taken  from  the 
canal  by  the  prisoner,  who  was  not  in  the  emplo}-  of  the  Canal  Com- 
pany, while  it  was  in  process  of  being  cleaned.  The  manager  of 
the  canal  stated  that,  if  the  property  found  on  such  occasions  in  the 
canal  can  be  identified,  it  is  returned  to  the  owner.  If  it  cannot,  it  is 
kept  by  the  compan}-. 

It  was  objected  that,  as  the  Canal  Compan}'  are  not  carriers,  but  only 
find  a  road  for  the  conveyance  of  goods  by  private  owners,  the  property 
was  not  properly  laid  as  that  of  the  Canal  Compan}-.  The  prisoner 
was  convicted,  and  sentenced  to  two  calendar  months'  imprisonment  in 
the  House  of  Correction  at  Cardiff,  but  was  released  on  bail. 

This  case  was  considered,  on  22d  November,  1858,  by  Pollock, 
C.  B.,  Wightman,  J.,  Williams,  J.,  Channell,  B.,  Byles,  J.,  and 
Hill,  J. 

No  counsel  appeared.  Cur.  adv.  vult. 

On  5th  February,  1859,  the  judgment  of  the  court  was  given  by  — 
Pollock,  C.  B.  The  judges  who  have  considered  this  case  are  unan- 
imoush'  of  opinion  that  the  conviction  should  be  affirmed.  The  case 
finds  that  some  iron  had  been  stolen  b}'  the  prisoner  from  the  canal 
while  the  canal  was  in  process  of  cleaning,  and  while  the  water  was 
out.  The  prisoner  was  not  in  the  emplo}'  of  the  Canal  Company,  but 
a  stranger ;  and  the  property'  of  the  company  in  the  iron  before  it  was 
taken  awa}-  b^'  the  prisoner  was  of  the  same  nature  as  that  which  a 

1  Ace.  Reg.  V.  Coffin,  2  Cox  C.  C.  44  ;  Reg.  v.  Pierce,  6  Cox  C.  C.  117  ;  Reg.  i'. 
Moore,  8  Cox  C.  C.  416;  State  v.  McCann,  19  Mo.  249;  People  i-.  McGarren,  17 
Wend.  460;  Lawrence  v.  State,  1  Humph.  228.  See  McAvoy  v.  Medina,  11  All.  548; 
B.  c.  1  Gray's  Caae-s  on  Prop.  378.  —  Ed. 

*  9.  c.  1  Gray's  Ca.'^es  on  Prop.  375. 


570  COMMONWEALTH    V.    TITUS.  [CHAP.  VIII. 

landlord  has  in  goods  left  behind  by  a  guest.  Property  so  left  is  in 
the  possession  of  the  landlord  for  the  purpose  of  delivering  it  up  to 
the  true  owner ;  and  he  has  sufficient  possession  to  maintain  an  indict- 
ment for  larceny.^  Conviction  affirmed. 


COMMONWEALTH  v.   TITUS. 
Supreme  Judicial  Court  of  Massachusetts.     1874. 

[^Reported  116  Massachusetts,  42.] 

Indictment  against  Lucian  M.  Titus  and  Elbridge  F.  Horr,  charging 
them  jointl}'  with  the  larceny  of  certain  articles  of  personal  property 
alleged  to  be  the  property  of  Nanc}'  Meacham. 

Trial  in  the  Superior  Court,  before  Aldrich,  J.,  who  allowed  the 
following  bill  of  exceptions:  "The  defendant  Horr  pleaded  guilt}'. 
Titus  pleaded  not  guilty.  Upon  his  trial  the  government  introduced 
evidence  tending  to  prove  the  ownership  of  the  property  as  alleged  in 
the  indictment ;  and  that  the  owner,  while  riding  on  one  of  the  public 
highways  in  Athol,  lost  the  wallet  or  travelling  bag  containing  the 
articles  mentioned  in  the  indictment ;  that  the  defendants,  passing 
along  the  same  highway  not  long  after  the  loss  of  the  bag,  discovered 
it,  picked  it  up,  and  afterwards  appropriated  the  contents  of  the  bag  to 
their  own  use,  and  destroyed  the  bag  by  cutting  it  in  pieces  and  con- 
cealing the  same  in  a  wood-lot  remote  from  the  place  of  finding. 

"  As  bearing  upon  the  question  of  the  intent  with  which  the  defend- 
ant Titus  originally  took  the  bag  and  its  contents,  the  government, 
against  his  objection,  was  permitted  to  introduce  evidence  to  show 
what  Titus  said  and  did  about  the  property  and  his  possession  of  it, 
subsequentl}'  to  the  original  finding  and  taking.  This  evidence  was 
offered  by  the  government  and  admitted  bv  the  court  for  the  single 
purpose  of  proving,  so  far  as  it  tended  to  do  that,  the  intent  with 
which  Titus  originally  took  the  property  into  liis  possession  at  the  time 
of  finding  it.  And  the  jury  were  instructed  that  the}-  could  properh* 
make  no  other  use  of  this  evidence  as  against  the  defendant. 

"  Tlie  defendant's  counsel  asked  the  court  to  rule  that  lost  propert}' 
cannot  be  the  subject  of  larcen}'.  This  ruling  the  court  declined  to 
give  ;  but  did  instruct  the  jury  that  to  authorize  a  conviction  of  the 
defendant  Titus,  they  must  be  convinced  by  the  evidence  in  the  case 
beyond  all  reasonable  doubt :  first,  that  at  the  time  of  the  finding  of 
the  property  by  the  defendant  and  the  taking  of  it  into  his  possession 
he  had  a  felonious  intent  of  appropriating  the  property'  to  his  own  use 
and  depriving  the  owner  of  it ;  secondly,  that  he  then  knew  who  the 

1  See  Elwes  v.  Brigg  Gas  Co.,  33  Ch.  D.  562;  Goodard  v.  Winchell  (la.),  52  N.  W. 
1124.  —  Ed. 


SECT.  II.]  COMMONWEALTH    V.   TITUS.  571 

owner  was,  or  then  had  reasonable  means  of  knowing  or  ascertaining 
who  the  owner  was. 

"The  court  further  instructed  the  jurj-  that  if  the  evidence  failed  to 
satisfy  them  beyond  every  reasonable  doubt  that,  at  the  time  of  finding 
the  property,  Titus  knew  or  had  reasonable  means  of  knowing  who  the 
owner  was  ;  or  if  tliey  should  find  that  he  did  not  originally  take  the 
property  with  the  felonious  intent  of  converting  it  to  his  own  use,  but 
formed  such  purpose  afterwards,  it  would  be  their  duty  to  acquit  him. 

"  To  the  admission  of  the  evidence  objected  to,  the  refusal  to  rule 
as  requested,  and  the  foregoing  instructions,  the  defendant  objected. 
Other  and  appropriate  instructions,  not  objected  to,  in  relation  to  the 
nature  of  the  offence  charged,  and  in  relation  to  the  evidence,  the 
burden  of  proof,   &c.,  were  given. 

"The  jury  returned  a  verdict  of  guilty,  and  the  defendant  alleged 
exceptions." 

F.  T.  Blackmer,  for  the  defendant,  cited  2  East  P.  C.  663  ;  Regina 
y.  Wood,  3  Cox  C.  C.  453  ;  Regina  v.  Preston,  2  Den.  C.  C.  353  ;  s.  c. 
5  Cox  C.  C.  390  ;  Regina  y.  Dixon,  7  ib.  35  ;  Regina  v.  Christopher, 
8  ib.  91;  Regina  v.  Moore,  ib.  416;  Regina  v.  Clyde,  11  lb.  103; 
People  r.  Anderson,  14  Johns.  294  ;  People  v.  Cogdell,  1  Hill,  94  ; 
Porter  v.  State,  Mart.  &  Yerg.  226;  Tyler  v.  People,  Breese,  227; 
State  V.  Weston,  9  Conn.  527. 

C.  B.  Train,  Attorney  General,  for  the  Commonwealth,  cited,  in 
addition  to  some  of  the  above  cases,  Regina  v.  Thurborn,  1  Den.  C.  C. 
387;  2  Bennett  &  Heard's  Lead.  Crim.  Cas.  (2d  ed.)  409,  417; 
Regina  v.  Shea,  7  Cox  C.  C.  147;  Commonwealth  v.  Mason,  105 
Mass.  163. 

Gray,  C.  J.  The  rulings  and  instructions  at  the  trial  were  quite  as 
favorable  to  the  defendant  as  the  great  weight,  if  not  the  unanimous 
concurrence,  of  the  cases  cited  on  either  side  at  the  argument  would 
warrant. 

The  finder  of  lost  goods  may  lawfully  take  them  into  his  possession, 
and  if  he  does  so  without  any  felonious  intent  at  that  time,  a  subse- 
quent conversion  of  them  to  his  own  use,  by  whatever  intent  that 
conversion  is  accompanied,  will  not  constitute  larceny.  But  if,  at  the 
time  of  first  taking  them  into  his  possession,  he  has  a  felonious  intent 
to  appropriate  them  to  his  own  use  and  to  deprive  the  owner  of  them, 
and  then  knows  or  has  the  reasonable  means  of  knowing  or  ascertain- 
ing, by  marks  on  the  goods  or  otherwise,  who  the  owner  is,  he  may  be 
found  guilty  of  larceny. 

It  was  argued  for  the  defendant  that  it  would  not  be  sufficient  that 
he  might  reasonably  have  ascertained  who  the  owner  was  ;  that  he 
must  at  least  have  known  at  the  time  of  taking  the  goods  that  he  had 
reasonable  means  of  ascertaining  that  fact.  But  the  instruction  given 
did  not  require  the  jury  to  be  satisfied  merely  that  the  defendant  might 
have  reasonably  ascertained  it,  but  that  at  the  time  of  the  original 
taking  he  either  knew  or  had  reasonable  means  of  knowing  or  ascer- 


572  REGINA   V.   FINLAYSON.  [CHAP.  VIII. 

taining  who  the  owner  was.  Such  a  finding  would  clearl}-  impl}-  that 
he  had  such  means  within  his  own  knowledge,  as  well  as  within  his 
own  possession  or  reach,  at  that  time. 

It  was  further  argued  that  evidence  of  acts  of  the  defendant,  subse- 
quent to  the  original  finding  and  taking,  was  wrongly  admitted,  because 
such  acts  might  have  been  the  result  of  a  purpose  subsequently  formed. 
But  the  evidence  of  the  subsequent  acts  and  declarations  of  the 
defendant  was  offered  and  admitted,  as  the  bill  of  exceptions  distinctly 
states,  for  the  single  purpose  of  proving,  so  far  as  it  tended  to  do  so, 
the  intent  with  which  the  defendant  originally  took  the  property'  into 
his  possession  at  the  time  of  finding  it.  And  the  bill  of  exceptions 
does  not  state  what  the  acts  and  declarations  admitted  in  evidence 
were,  and  consequently  does  not  show  that  any  of  them  had  no  tendency 
to  prove  that  intent,  nor  indeed  that  an}'  acts  were  proved  except  such 
as  accompanied  and  gave  significance  to  distinct  admissions  of  the 
intent  with  which  the  defendant  originally  took  the  goods. ^ 

Exceptions  overruled. 


REGINA   V.   FINLAYSON. 
Supreme  Court  of  New  South  Wales.     1864. 

[Reported  3  New  South  Wales  S.  C.  Reports,  301.] 

Stephen,  C.  J.^  It  appears  that  the  prisoner  was  driving  a  mob  of 
horses,  when  the  horse  in  question  (a  branded  animal,  the  ownership, 
therefore,  of  which  was  ascertainable  in  the  neighborhood)  joined  the 
others  —  it  being  near  the  owner's  run.  Whether  the  prisoner  (who 
was  two  or  three  hundred  yards  behind,  having  assistants  ahead  or  at 
the  side)  saw  at  the  time  that  this  horse  had  joined  his  own  horses,  did 
not  appear.  But  it  was  proved  that  the  next  morning,  as  the  custom 
was,  the  prisoner  counted  over  the  entire  mob,  jind  then  drove  the 
whole  on  together  to  their  destination.  The  learned  judge,  in  sub- 
stance, told  the  jury  that  assuming  this  to  be  a  case  of  finding,  yet  the 
prisoner  need  not  have  formed  the  intent  to  appropriate  the  animal  at 
the  moment  of  its  junction  with  the  others,  or  of  the  then  continued 
driving  onward  of  the  horses,  but  that  it  was  necessary  to  show  that 
such  intent  existed  at  the  moment  of  taking.  He  left  the  question  to 
them,  therefore,  whether  the  intent  existed  when  the  prisoner  first  did 
some  act,  or  gave  some  direction  by  which  he  treated  the  horse  as  part 
of  his  own  mob  of  horses,  or  incorporated  it  therewith.  I  am  of 
opinion  that  this  direction  was  right;    and   it  seems  to  be  doubtful 

1  Ace.  Rountree  v.  State,  58  Ala.  381  ;  Grie:^s  ?•.  State,  58  Ala.  425 ;  State  v.  Levj, 
23  Minn.  104 ;  State  v.  Clifford,  14  Nev.  72 ;  Baker  v.  State,  29  Oh.  St.  184 ;  Brooks  v 
State,  35  Oh.  St.  46.  —Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


SECT.  II.]  REGINA   V.   ASHWELL.  573 

whether  the  prisoner's  case  was  one  of  finding  at  all.  If  it  merelj' 
strayed,  it  was  not  lost,  and  could  not  tiierefore  be  found.  But  it 
appears  that  the  next  morning  the  prisoner  counted  the  horses,  and  lie 
therefore  then  saw  this  one  among  them,  and  determined  to  take  pos- 
session of  it.  By  the  same  act,  he  took  possession,  and  determined 
to  appropriate  it. 
Wise,  J.,  concurred.  Conviction  sustained} 


REGINA  V.   ASFIWELL. 

Crown  Case  Reserved.     1885. 

[Reported  16  Cox  C.  C.  1.] 

Case  reserved  for  the  opinion  of  the  court  by  Denman,  J.,  at  the 
January  Assizes,  1885,  for  the  county  of  Leicester,  which  stated  the 
following  facts  :  — 

On  the  *23d  of  January,  1885,  Thomas  Ashwell  was  tried  for  the 
larceny  of  a  sovereign,  the  mone^'  of  Edward  Keogh. 

Keogh  and  Ashwell  met  at  a  public  house  on  the  9th  of  January-. 

At  about  eight  p.  m.  Ashwell  asked  Keogh  to  go  into  the  yard,  and 
when  there  requested  Keogh  to  lend  him  a  shilling,  saying  that  he  had 
money  to  draw  on  the  morrow,  and  that  then  he  would  repay  him. 
Keogh  consented,  and  putting  his  hand  into  his  pocket,  pulled  out 
what  he  believed  to  be  a  shilling,  but  what  was  in  fact  a  sovereign,  and 
handed  it  to  Ashwell,  and  went  home,  leaving  Ashwell  in  the  yard. 
About  nine  the  same  evening  Ashwell  obtained  change  for  the  sovereign 
at  another  public  house. 

At  5.20  the  next  morning  (the  10th)  Keogh  went  to  Ash  well's  house 
and  told  him  that  he  had  discovered  the  mistake,  whereupon  Ashwell 
denied  having  received  the  sovereign,  and  on  the  same  evening  he  gave 
false  and  contradictory  accounts  as  to  where  he  had  become  possessed 
of  the  sovereign  he  had  changed  at  the  second  public  house  on  the 
night  before.  But  he  afterwards  said,  "  I  had  the  sovereign  and  spent 
half  of  it,  and  I  sha'n't  give  it  him  back,  because  I  onh'  asked  him  to 
lend  me  a  shilling." 

3Ir.  Sills,  for  the  prisoner,  submitted  that  there  was  no  evidence  of 
larceny,  no  taking,  no  obtaining  b}-  trick  or  false  pretence,  no  evidence 
that  the  prisoner  at  the  time  he  received  the  sovereign  knew  it  was 
not  a  shilling.  He  referred  to  Regina  v.  Middleton,  L.  Rep.  2  C.  C.  R. 
43,  45. 

Mr.  A.  K.  Loyd,  for  the  prosecution,  called  m}-  attention  to 
Stephen's  Criminal  Law  Digest,  art.  299,  and  to  the  cases  relating  to 
larceny  of  property  found. 

I  declined  to  withdraw  the  case  from  the  jur}-,  thinking  it  desirable 

1  Ace.  Reg.  V.  Riley,  6  Cox  C.  C.  88  ;  Dears.  149,  infra.  — ^j>. 


574  REGINA    V.    ASHWELL.  [CHAP.  VIII. 

ihat  the  point  raised  should  be  decided  by  the  Court  of  Criminal  Appeal. 
The  passage  in  Stephen's  Digest  referred  to  is  as  follows  :  "  Theft  may 
be  committed  by  converting  property  which  the  owner  has  given  to  the 
offender  under  a  mistake  which  the  offender  has  not  caused,  but  which 
he  knows  at  the  time  when  it  is  made,  and  of  which  lie  fraudulent!}' 
takes  advantage.  But  it  is  doubtful  whether  it  is  theft  fraudulently  to 
convert  property  given  to  the  person  converting  it  under  a  mistake  of 
which  that  person  was  not  aware  when  he  received  it." 

The  jury  found  tliat  the  prisoner  did  not  know  that  it  was  a  sovereign 
at  the  time  he  received  it,  but  said  they  were  unanimously  of  opinion 
that  the  prosecutor  parted  with  it  under  the  mistaken  belief  that  it  was 
a  shilling,  and  that  the  prisonei-,  having  soon  after  he  received  it  dis- 
covered that  it  was  a  sovereign,  could  have  easily  restored  it  to  the 
prosecutor,  but  fraudulently  appropriated  it  to  his  own  use  and  denied 
the  receipt  of  it,  knowing  that  the  prosecutor  had  not  intended  to  part 
with  the  possession  of  a  sovereign,  but  only  of  a  sljilling.  They  added 
that,  if  it  were  competent  to  them,  consistently  with  these  findings  and 
with  the  evidence,  to  find  the  prisoner  guilty,  they  meant  to  do  so. 

I  entered  a  verdict  of  guilty,  but  admitted  the  prisoner  to  bail,  to 
come  up  for  judgment  at  the  next  assizes  if  this  court  should  think  that 
upon  the  above  facts  and  findings  the  prisoner  could  properly  be  found 
guilty  of  larceny. 

March  21.  Before  Lord  Coleridge,  C.  J.,  Grove,  Lopes,  Stephen, 
and  Cave,  JJ.^ 

(Tune  13.  This  case  was  reargued  before  the  following  learned 
judges:  Lord  Coleridge,  C.  J.,  Grove  and  Denman,  JJ.,  Pollock,  B., 
Field,  J.,  Huddleston,  B.,  Manisty,  Hawkins,  Stephen,  Mathew,  Cave, 
Da}-,  Smith,  and  Wills,  JJ. 

Smith,  J.,  read  the  following  judgment:  The  prisoner  in  this  case 
was  indicted  for  the  larceny  of  a  sovereign,  the  moneys  of  Edward 
Keogh.  The  material  facts  are  as  follows  :  Keogh  handed  to  the 
prisoner  the  sovei'eign  in  question,  believing  it  was  a  shilling  and  not 
a  sovereign,  upon  the  terms  that  the  prisoner  should  hand  back  a  shil- 
ling to  him  when  he  (the  prisoner)  was  paid  his  wages.  At  the  time 
the  sovereign  was  so  handed  to  the  prisoner  he  honestly  believed  it  to 
be  a  shilling.  Some  time  afterwards  the  prisoner  discovered  that  the 
coin  he  had  received  was  a  sovereign  and  not  a  shilling,  and  then  and 
there  fraudulently  appropriated  it  to  his  own  use.  Is  this  larcen}'  at 
common  law  or  by  statute?  To  constitute  the  crime  of  larcen}'  at 
common  law,  in  my  judgment,  there  must  be  a  taking  and  carrying 
away  of  a  chattel  against  the  will  of  the  owner,  and  at  the  time  of  such 
taking  there  must  exist  a  felonious  intent  in  tlie  mind  of  the  taker. 
If  one  or  both  of  the  above  elements  be  absent,  there  cannot  be  larcen}' 
at  common  law.  The  taking  must  be  under  such  circumstances  as 
would  sustain  an  action  of  trespass.     If  there  be  a  bailment  or  delivery 

1  Are;uments  of  counsel  are  omitted. 


SECT.  II.]  REGINA   V.    ASH  WELL.  575 

of  the  chattel  b}"  the  owner,  inasmuch  as,  among  other  reasons,  trespass 
will  not  lie,  it  is  not  larceny  at  common  law.  In  c.  19,  §  1,  at  p. 
142  of  vol.  i.  of  Hawkins'  Fleas  of  the  Crown,  it  is  stated:  "  It  is 
to  be  observed  that  all  felony  includes  trespass,  and  that  every  indict- 
ment of  larceny  must  have  the  words  felonice  cepit  as  well  as  asportavit. 
Whence  it  follows  that  if  the  party  be  guilty  of  no  trespass  in  taking 
the  goods  he  cannot  be  guilty  of  felony  in  currying  them  awav."  As  1 
understand,  the  counsel  for  the  Crown  did  not  really  dispute  the  above 
definition,  and  indeed,  if  he  had,  upon  further  referring  to  the  3d  In- 
stitutes, chap,  xlvii.,  p.  107,  and  the  1st  Hale's  Pleas  of  the  Crown, 
p.  61,  it  would  be  found  to  be  fully  borne  out  by  those  writers.  The 
two  cases  cited  in  argument.  Rex  v.  Mucklow,  1  Moody's  Crown  Cases, 
IGl,  and  Regina  v.  Davies,  Dears.  640,  are  good  illustrations  of  what  I 
have  enunciated  ;  and  if  other  cases  were  wanted  there  are  plenty  in 
the  books  to  the  same  effect.  In  the  present  case  it  seems  to  me,  in  the 
first  place,  that  the  coin  was  not  taken  against  the  will  of  the  owner, 
and  if  this  be  so,  in  my  judgment  it  is  sufficient  to  show  that  there  was 
no  larceny  at  common  law  ;  and  secondly,  it  being  conceded  that  there 
wa&  no  felonious  intent  in  the  prisoner  when  he  received  the  coin,  this, 
in  my  judgment,  is  also  fatal  to  the  act  being  larceny  at  common  law. 
As  to  this  last  point,  the  law  laid  down  by  Cockburn,  C.  J.,  Blackburn, 
Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  in  the  case  of 
Regina  v.  Middleton,  L.  Rep.  2  C.  C.  45,  is  A-ery  pertinent;  it  is  as 
follows:  "  We  admit  that  the  case  is  undistinguishable  from  the  one 
supposed  in  argument  of  a  person  banding  to  a  cabman  a  sovereign  1)3" 
mistake  for  a  shilling  ;  but  after  a  careful  weighing  of  the  opinions  to 
the  contrary,  we  are  decidedly  of  opinion  that  the  property-  in  the 
sovereign  would  not  vest  in  the  cabman,  and  the  question  whether  the 
cabman  was  guilt}'  of  larceny  or  not  would  depend  upon  this,  —  whether 
at  the  time  he  took  the  sovereign  he  was  aware  of  the  mistake  and  had 
then  the  guilty  intent,  the  animus  furandi."  I  believe  the  above  to 
be  good  law.  The  contention,  however,  of  the  Crown  was  that,  although 
the  above  might  be  correct,  3'et  the  present  case  was  to  be  likened  to 
those  cases  in  which  finders  of  a  lost  chattel  have  been  held  guiltv  of 
larceny.  The  principle  upon  which  a  finder  of  a  lost  chattel  has  lieen 
held  guilty  of  larceny  is  that  he  has  taken  and  carried  awaj-  a  chattel, 
not  believing  that  it  had  been  abandoned,  and  at  the  time  of  such  taking 
has  had  the  felonious  intent,  —  the  proper  direction  to  be  given  to  a 
jui'y  being,  as  I  understood,  "  Did  the  prisoner,  at  the  time  of  finding 
the  chattel  intend  to  appropriate  it  to  his  own  use,  then  believing  that 
the  true  owner  could  be  found,  and  that  the  chattel  had  not  been 
abandoned?"  See  Regina  i\  Thurborn,  1  Denison's  Crown  Cases,  388, 
and  Regina  v.  Clyde,  L.  Rep.  1  C.  C.  139.  If  he  did,  he  would  be 
guilty  of  larceny  ;  aliter  he  would  not.  Then  it  was  argued,  as  argued 
it  was  by  the  counsel  for  the  Crown,  that  the  prisoner  in  this  case  was 
on  the  same  footing  as  a  finder  of  a  chattel.  In  my  judgment  the  facts 
do  not  support  it.     Keogh,  in  the  present  case,  intended  to  deliver  the 


576  REGINA   V.   ASHWELL.  [CHAP.  VIII, 

coin  to  the  prisoner  and  the  prisoner  to  receive  it.  The  chattel, 
namely,  the  coin,  was  delivered  over  to  the  prisoner  by  its  owner,  and 
the  prisoner  received  it  honestly.  He  alwa^'s  knew  he  had  the  coin  in 
his  possession  after  it  had  been  delivered  to  him.  The  only  thing  which 
was  subsequently  found  was  that  the  coin  delivered  was  worth  240f/., 
instead  of  12d.,  as  had  been  supposed.  This  argument,  as  it  seems  to 
me,  confounds  the  finding  out  of  a  mistake  with  the  finding  of  a  chattel. 
In  some  cases,  as  above  pointed  out,  the  finder  of  a  chattel  may  be 
guilty  of  larcen}'  at  common  law  ;  but  how  does  that  show  that  the 
finder  out  of  a  mistake  may  also  be  guilty  of  such  a  crime?  A  mistake 
is  not  a  chattel.  The  chattel  (namely,  the  coin)  in  this  case  never  was 
lost ;  then  how  could  it  be  found  ?  In  my  judgment  the  argument  upon 
the  point  for  the  Crown  is  wholly  fallacious  and  fails.  It  was  further 
urged  for  the  Crown  that  the  present  case  was  covered  by  authority', 
and  the  cases  of  Cartwright  v.  Green,  8  Ves.  405,  and  Merrv  v.  Green, 
7  M.  &  W.  623,  were  cited  in  this  behalf.  I  fail  to  see  that  either  case 
is  an  authorjt}'  for  the  point  insisted  upon  by  the  Crown.  In  the  first 
case,  Cartwright  v.  Green,  8  Ves.  405,  the  question  arose  upon  demurrer 
to  a  bill  in  Chancer}-  as  to  whether  a  felony  was  disclosed  upon  the  face 
of  the  bill.  Lord  Eldon,  as  he  states  in  his  judgment,  decided  the  case 
upon  the  ground  that,  inasmuch  as  the  bureau  in  question  had  been 
delivered  to  the  defendant  for  no  other  purpose  than  repair,  and  he  had 
broken  open  a  part  of  it  which  it  was  not  necessary  to  touch  for  the 
purpose  of  repair  with  the  intention  of  taking  and  appropriating  to  his 
own  use  whatever  he  should  find  therein,  it  was  larceny.  I  conceive 
this  to  be  distinctl}-  within  the  principle  I  have  above  stated,  —  there 
was  the  taking  against  the  will  of  the  owner  with  the  felonious  intent 
at  the  time  of  taking.  The  other  case,  namel}'.  Merry  v.  Green,  7  M. 
&  "W.,  623,  which  was  also  the  case  of  a  purse  in  a  secret  drawer  of  a 
bureau  which  had  been  purchased  at  a  sale,  was  clearl}'  decided  by 
Parke,  B.,  who  delivered  the  judgment  of  the  court,  upon  the  principles 
applicable  to  a  case  of  finding.  The  learned  Baron  says:  "  It  seems 
to  us  that  though  there  was  a  delivery  of  the  secretary  and  a  lawful 
property'  in  it  thereb}'  vested  in  the  plaintiff,  thez-e  was  no  delivery  so 
as  to  give  a  lawful  possession  of  the  purse  and  money.  The  vendor 
had  no  intention  to  deliver  it  nor  the  vendee  to  receive  it ;  both  were 
ignorant  of  its  existence  ;  and  when  the  plaintiff"  discovered  that  there 
was  a  secret  di'awer  containing  the  purse  and  money,  it  was  a  case  of 
simple  finding,  and  the  law  applicable  to  all  cases  of  finding  applies." 
I  understand  the  learned  Baron,  when  he  says  "the  law  applicable  to 
all  cases  of  finding  applies,"  to  mean  the  law  applicable  to  the  cases  of 
finding  a  chattel ;  for  there  are  no  cases  extant  as  to  finding-  out  a 
mistake  to  which  his  remark  could  appl}'.  That,  too,  is  the  distinction 
between  the  present  case  and  that  before  Parke,  B.  In  Merry  v. 
Green,  7  M.  &*W.  623,  no  intention  to  deliver  the  chattel  (namel}', 
the  purse  and  money)  at  all  ever  existed,  whereas  in  the  present  case 
there  was  every  intention  to  deliver  the  chattel  (namel}-,  the  coin),  and 


SECT.  II.]  REGINA   V.   ASHWELL.  577 

it  was  delivered  and  honestly  received.  In  my  judgment  a  man  who 
honestly  receives  a  chattel  b}'  delivery  thereof  to  him  b^-  its  true  owner 
cannot  be  found  guilty  of  larceny  at  common  law,  and  in  my  opinion 
the  prisoner  in  this  case  is  not  guilty  of  that  offence.  The  second 
point  has  now  to  be  considered,  namel}',  was  he  guilt}'  of  larceny  as  a 
bailee  within  the  true  intent  of  §  3  of  24  &  25  Vict.  c.  9G?  To  consti- 
tute a  person  bailee  of  a  chattel  there  must  be  a  bailment  and  not  a 
mere  delivery  of  the  chattel.  There  must  be  a  delivery  of  a  chattel 
upon  contract  express  or  implied  to  return  the  chattel  or  obey  the 
mandate  witli  which  the  delivery  is  clogged,  or  in  other  words,  a  delivery 
upon  condition.  The  question  as  it  seems  to  me  is  this,  Is  the  law  in 
the  present  case  to  imply  a  condition  when  we  know  perfectly  well  that 
at  the  time  of  the  delivery  of  the  coin  no  condition  at  all  was  in  the 
contemplation  of  the  parties,  excepting  that  a  coin  of  like  value  should 
be  returned  to  Keogh  when  the  prisoner  had  drawn  his  wages?  No 
condition  to  return  the  coin  delivered  to  the  prisoner  was  ever  thought 
of,  and  in  my  judgment,  such  a  condition  cannot  be  implied.  Should, 
however,  any  condition  be  implied  as  to  what  was  to  be  done  if  or 
when  an}'  mistake  not  then  contemplated  should  be  discovered,  my 
opinion  is  that  the  only  condition,  if  an}',  which  could  be  implied  would 
be  that  the  prisoner  would  not  spend  or  use  for  his  own  purposes  19s.  out 
of  the  205.  ;  and  I  am  of  opinion  that  if  the  prisoner  had,  upon  finding 
out  the  mistake,  taken  to  Keogh  19s.,  he  would  have  been  strictly 
within  his  rights.  The  case  of  Regina  v.  Hassall,  L.  &  C.  58,  is  an 
express  authority  to  the  effect  that  a  person  is  not  a  bailee  within  the 
statute  unless  he  is  under  obligation  to  return  the  identical  chattel 
deposited  with  him.  In  my  judgment  the  prisoner  was  not  a  bailee  of 
the  sovereign  for  the  reasons  above  given.  I  am  fully  alive  to  the 
remark  which  has  been  made,  that  if  the  present  case  is  not  one  of 
lareen}',  it  should  be.  "Whether  this  remark  is  well  founded  or  not  I 
do  not  pause  to  inquire  ;  but  it  seems  to  me  that  the  observations  of 
Bramwell,  B.,  in  Regina  ik  Middleton,  L.  Rep.  2  C.  C.  38,  on  this  head 
are  well  worthy  of  consideration.  Believing,  however,  as  I  do,  that 
according  to  the  law  of  England,  as  administered  from  the  earliest 
times,  the  present  case  is  not  a  case  of  larceny  at  common  law,  I  cannot 
hold  otherwise  than  I  do  ;  and  as  for  the  reasons  given  above,  the 
prisoner  is  not,  in  ray  opinion,  guilty  of  larceny  as  a  bailee,  my  judg- 
ment is  that  the  conviction  should  be  quashed.^ 

Cave,  J.  (As  the  learned  judge  was  unable  to  attend,  the  following 
judgment,  written  by  him,  was  read  by  Lord  Coleridge,  C.  J.)  The 
question  we  have  to  decide  is,  whether  under  the  circumstances  stated 
in  the  case  the  prisoner  was  rightly  convicted  of  larceny,  either  at 
common  law  or  as  a  bailee.  It  is  undoubtedly  a  correct  proposition 
that  there  can  be  no  larceny  at  common  law  unless  there  is  also  a  tres- 

1  Concurring  opinions  were  delivered  by  Mathew,  Field,  Manisty,  and  Stephen, 
JJ.     Day  and  Wills,  JJ.,  also  concurred. 


578  REGINA   V.    ASHWELL.  [CHAP.  VIII. 

pass,  and  that  there  can  be  no  trespass  where  the  prisoner  has  obtained 
lawful  possession  of  the  goods  alleged  to  be  stolen  ;  or  in  other  words, 
the  thief  must  take  the  goods  into  his  possession  with  the  intention  of 
depriving  the  owner  of  them.  If  he  has  got  the  goods  lawfully  into  his 
possession  before  the  intention  of  depriving  the  owner  of  them  is 
formed,  there  is  no  larceny.  Applying  that  principle  to  this  case,  if  the 
prisoner  acquired  lawful  possession  of  the  sovereign  when  the  coin  was 
aclualh'  handed  to  him  by  the  prosecutor,  there  is  no  larcen}',  for  at 
that  time  the  prisoner  did  not  steal  the  coin  ;  but  if  he  onl}-  acquired 
possession  when  he  discovered  the  coin  to  be  a  sovereign,  then  he  is 
guilty  of  larcen}-,  for  at  that  time  he  knew  that  he  had  not  the  consent 
of  tlie  owner  to  his  taking  possession  of  the  sovereign  as  his  own,  and 
the  taking  under  those  circumstances  was  a  trespass.  It  is  contended 
that,  as  the  prosecutor  gave  and  the  prisoner  received  the  coin  under 
the  impression  that  it  was  a  shilling  and  not  a  sovereign,  the  prosecutor 
never  consented  to  part  with  the  possession  of  the  sovereign,  and  con- 
sequenth'  there  was  a  taking  by  the  prisoner  witliout  his  consent ;  but 
to  my  mind,  it  is  impossible  to  come  to  the  conclusion  that  at  the  time 
when  the  sovereign  was  handed  to  him,  tlie  prisoner,  who  was  then 
under  a  bona  fide  mistake  as  to  the  coin,  can  be  held  to  have  been 
guilty-  of  a  trespass  in  taking  that  which  the  prosecutor  gave  him.  It 
seems  to  me  that  it  would  be  equally  logical  to  sa}-  that  the  prisoner 
would  have  been  guilt\'  of  a  trespass  if  the  prosecutor,  intending  to  slip 
a  shilling  into  the  prisoner's  pocket  without  his  knowledge,  had  by 
mistake  slipped  a  sovereign  in  instead  of  a  shilling.  The  onl}'  point 
wiiich  can  be  made  in  favor  of  the  prosecution,  so  far  as  I  can  see,  is 
that  the  prisoner  did  not  actually  take  possession  until  he  knew  what 
the  coin  was  of  which  he  was  taking  possession,  in  which  case,  as  he 
then  determined  to  deprive  the  prosecutor  of  his  property,  there  was  a 
taking  possession  simultaneously  with  the  formation  of  that  intention. 
Had  the  coin  been  a  shilling,  it  is  obvious  that  the  prisoner  would  have 
gained  the  property  in  and  the  possession  of  the  coin  when  it  was  handed 
to  him  by  the  prosecutor  ;  as  there  was  a  mistake  as  to  the  identity  of 
the  coin  no  property  passed,  and  the  question  is  whether  the  possession 
passed  when  the  coin  was  handed  to  the  prisoner  or  wlien  the  prisoner 
first  knew  that  he  had  got  a  sovereign  and  not  a  shilling.  There  are 
four  cases  which  it  is  important  to  consider.  The  first  is  Cartwright  v. 
Green,  8  Ves.  405,  which,  however,  differs  slightly  from  the  present, 
because  in  that  case  there  was  no  intention  to  give  the  defendant 
Green  either  the  property  in  or  the  possession  of  the  guineas,  but  only 
the  possession  of  the  bureau,  the  bailor  being  unaware  of  the  existence 
of  the  guineas.  If  the  bailee  in  that  case  had,  before  discovering  the 
guineas  in  the  secret  drawer,  negligently  lost  the  bureau  with  its  con- 
tents, it  is  difficult  to  see  how  he  could  have  been  made  responsible  for 
the  loss  of  the  guineas.  In  Merry  v.  Green,  7  M.  &  W.  623,  the  facts 
were  similar  to  Cartwright  v.  Green,  8  Ves.  405,  except  that  the  bureau 
had  been  sold  to  the  defendant.    In  that  case  Parke,  B.,  says  that  though 


SECT.  II.]  REGINA   V.   ASHWELL.  579 

there  was  a  deliver}-  of  the  bureau  to  the  defendant,  there  was  no  de- 
livery so  as  to  give  a  lawful  possession  of  the  purse  and  money  in  the 
secret  drawer.  If  these  cases  are  rightly  decided,  as  1  believe  them 
to  be,  tliey  establish  the  i)rinciple  tliat  a  man  has  not  possession  of  tliat 
of  the  existence  of  which  he  is  unaware.  A  man  cannot  without  his 
consent  be  made  to  incur  the  responsibilities  toward  the  real  owner 
which  arise  even  from  the  simple  possession  of  a  chattel  without  further 
title,  and  if  a  chattel  has  without  his  knowledge  been  placed  in  his 
custod}-,  his  riglits  and  liabilities  as  a  possessor  of  that  chattel  do  not 
arise  until  he  is  aware  of  the  existence  of  the  chattel  and  has  assented 
'to  the  possession  of  it.  A  case  much  urged  upon  us  on  behalf  of  the 
prisoner  was  Rex  v.  Mucklow,  1  Moody's  Crown  Cases,  160.  In  that 
case  a  letter  containing  a  draft  for  £10  lis.  6d.  had  been  delivered  to 
the  prisoner,  although  really  meant  for  another  person  of  the  same  name, 
and  tlie  prisoner  appropriated  the  draft,  and  was  tried  and  convicted  of 
larcen}-.  The  conviction,  however,  was  held  wrong  on  the  ground  that 
he  had  no  animus  furandi  when  he  first  received  the  letter.  Here,  as 
in  the  two  previous  cases,  the  prisoner  was  not  at  first  aware  of  the 
existence  of  the  draft,  and  when  he  became  aware  of  it  he  must  have 
known  that  it  w-as  not  meant  for  him,  yet  the  judges  seem  to  have  held 
that  he  got  possession  of  the  draft  at  the  time  when  the  letter  was 
handed  to  him.  In  Regina  v.  Davies,  Dearsle3''s  Crown  Cases,  640,  the 
facts  were  similar  to  those  in  Mucklow's  case,  1  Moody's  Crown  Cases, 
161  ;  and  Erie,  C.  J.,  then  Erie,  J.,  who  tried  the  case,  directed  the 
jur_y  that  if  at  the  time  the  prisoner  received  the  order  he  knew  it  was 
not  his  property  but  the  propert}^  of  another  person  of  known  name  and 
address,  and  nevertheless  determined  to  appropriate  it  wrongfulh'  to 
his  own  use,  he  was  guilty  of  larcen}-,  and  that  in  his  opinion  the 
prisoner  had  not  received  it  nntil  he  had  discovered,  b}'  opening  and 
reading  tlie  letter,  whether  it  belonged  to  him  or  not.  "  I  considered," 
sa3's  the  judge,  "  that  the  law  of  larceny  laid  down  in  respect  of  articles 
found  was  applicable  to  the  article  here  in  question."  The  court, 
however,  quashed  the  conviction  on  the  authorit}'  of  Mucklow's  case, 
1  Moodj-'s  Crown  Cases,  160.  In  Regina  v.  Middleton,  L.  Rep.  2 
C,  C.  38,  in  which  it  was  held  by  eleven  judges  against  four  that,  where 
there  was  a  delivery  of  mone}'  under  a  mistake  to  the  prisoner,  who 
received  it  animo  furandi^  he  was  guilty  of  larcen}',  there  occurs  a 
passage  in  the  judgment  of  some  of  the  judges  who  formed  the  majoritj-, 
which  is  as  follows:  "  AVe  admit  that  the  case  is  undistinguishable 
from  the  one  supposed  in  the  argument,  of  a  person  handing  to  a 
cabman  a  sovereign  by  mistake  for  a  shilling ;  but  after  carefuU}' 
weighing  the  opinions  to  the  contrary,  we  are  decidedl}'  of  opinion  that 
the  property  in  the  sovereign  would  not  vest  in  the  cabman,  and  that 
the  question  whether  the  cabman  was  guilty  of  larceny  or  not  would 
depend  upon  this,  —  whether  he,  at  the  time  he  took  the  sovereign,  was 
aware  of  the  mistake,  and  had  then  the  guilt}-  intent,  the  animus 
furandi."     For  m}'  part,  I  am  quite  unable  to  reconcile  the  cases  of 


580  REGINA   V.    ASHWELL.  [CHAP.  VIII. 

Rex  V.  Mucklovv,  1  Mood}'  C.  C.  161  and  Regina  v.  Davies,  Dears. 
C.  C.  640,  and  the  passage  I  have  cited  from  Regina  v.  Middleton, 
L.  Rep.  2  C.  C.  38,  with  those  of  Cartvvright  v.  Green,  8  Ves.  405  and 
Merry  v.  Green,  7  M.  &  \V.  628;  and  being  compelled  to  choose  be- 
tween them,  I  am  of  opinion  that  the  law  is  correctly  laid  down  in 
Merry  v.  Green,  7  M.  &  W.  623,  for  the  following  reasons  :  The  accept- 
ance by  the  receiver  of  a  pure  benefit  unmixed  witli  responsibility  may 
fairly  be,  and  is  in  fact,  presumed  in  law  until  the  contrary  is  shown  ; 
but  the  acceptance  of  something  which  is  of  doubtful  benefit  should  not 
be  and  is  not  presumed.  Possession  unaccompanied  by  ownership  is 
of  doubtful  benefit ;  for  although  certain  rights  are  attached  to  the 
possession  of  a  chattel,  they  are  accompanied  also  by  liabilities  toward 
the  absolute  owner  which  ma}-  make  the  possession  more  of  a  burden 
than  a  benefit.  In  my  judgment,  a  man  cannot  be  presumed  to  assent 
to  the  possession  of  a  chattel ;  actual  consent  must  be  shown.  Now  a 
man  does  not  consent  to  that  of  which  he  is  wholly  ignorant ;  and  I 
think,  therefore,  it  was  rightly  decided  that  the  defendant  in  Merry  v. 
Green,  7  M.  &  W.  623,  was  not  in  possession  of  the  purse  and  money 
until  he  knew  of  their  existence.  Moreover,  in  order  that  there  ma}'  be 
a  consent,  a  man  must  be  under  no  mistake  as  to  that  to  which  he 
consents  ;  and  I  think,  therefore,  that  Ashwell  did  not  consent  to  the 
possession  of  the  sovereign  until  he  knew  that  it  was  a  sovereign. 
Suppose  that  while  still  ignorant  that  the  coin  was  a  sovereign  he  had 
given  it  away  to  a  third  person,  who  had  misappropriated  it,  could  he 
have  been  made  responsible  to  the  prosecutor  for  the  return  of  20^.? 
In  my  judgment  he  could  not.  If  he  had  parted  with  it  innocently, 
while  still  under  the  impression  that  it  was  only  a  shilling,  I  think  he 
could  have  been  made  responsible  for  the  return  of  a  shilling  and  a 
shilling  only,  since  he  had  consented  to  assume  the  responsibility  of  a 
possessor  in  respect  of  a  shilling  only.  It  may  be  said  that  a  carrier  is 
responsible  for  the  safe  custody  of  the  contents  of  a  box  delivered  to 
him  to  be  carried,  although  he  may  be  ignorant  of  the  nature  of  its 
contents  ;  but  in  that  case  the  carrier  consents  to  be  responsible  for  the 
safe  custody  of  the  box  and  its  contents,  whatever  they  may  happen  to 
be  ;  and,  moreover,  a  carrier  is  not  responsible  for  the  loss  of  valuable 
articles  if  he  has  given  notice  that  he  will  not  be  responsible  for  such 
articles  unless  certain  conditions  are  complied  with,  and  is  led  by  the 
consignor  to  believe  that  the  parcel  given  to  him  to  carry  does  not 
contain  articles  of  the  character  specified  in  the  notice.  Batson  v. 
Donovan,  4  B.  &  A.  21.  In  this  case,  Ashwell  did  not  hold  himself 
out  as  being  willing  to  assume  the  responsibilities  of  a  possessor  of  the 
coin,  whatever  its  value  might  be  ;  nor  can  I  infer  that  at  the  time  of 
the  delivery  he  agreed  to  be  responsible  for  the  safe  custody  and  return 
of  the  sovereign.  As,  therefore,  he  did  not  at  the  time  of  delivery 
subject  himself  to  the  liabilities  of  the  borrower  of  a  sovereign,  so  also 
I  think  that  he  is  not  entitled  to  the  privileges  attending  the  lawful 
possession  of  a   borrowed   sovereign.     When  he  discovered  that  th« 


SECT.  II.]  REGINA    V.    FLOWERS.  581 

coin  was  a  sovereign,  he  was,  I  think,  bound  to  elect,  as  a  finder  woalu 
be,  wliether  he  would  assume  the  responsibilities  of  a  possessor ;  but 
at  the  moment  when  lie  was  in  a  position  to  elect,  he  also  determined 
fraudulently  to  convert  the  sovereign  to  his  own  use  ;  and  I  am  there- 
fore of  opinion  that  he  falls  within  the  principle  of  liegina  v.  Middleton, 
L.  Rep.  2  C.  C.  45,  and  was  guilty  of  larcen}'  at  common  law.  For  these 
reasons,  I  am  of  opinion  that  the  conviction  was  right.^ 


REGINA  V.   FLOWERS. 

Crown  Case  Reserved.     1886. 

[Reported  16  Cox  C.  C.  33.] 

Case  reserved  by  the  learned  Recorder  for  the  borough  of  Leicester, 
at  the  last  Epiphany  Quarter  Sessions  for  that  borough,  upon  the  trial 
of  an  indictment  which  charged  one  Charles  Flowers  with  having,  on 
the  31st  day  of  October,  1885,  while  being  servant  to  one  Samuel  Len- 
nard  and  another,  feloniously  stolen,  taken,  and  carried  away  certain 
money  to  the  amount  of  seven  shillings  and  one  penny  halfpenny,  tlie 
property  of  the  said  Samuel  Lennard  and  another,  his  masters. 

It  appeared  from  the  case  that  the  prisoner  had  been  for  about  three 
months  next  preceding  the  31st  day  of  October,  1885,  a  clicker  in  the 
service  of  Messrs.  Lennard  Brothers,  a  firm  of  shoe  manufacturers  in 
Leicester,  in  whose  establishment  the  following  mode  of  payment  of 
the  wages  of  their  employees  was  adopted,  namely :  — 

The  amount  of  wages  due  to  each  workman  was  calculated  from  the 
time-book  and  entered  into  the  wages-book.  Each  amount  was  then 
made  up  and  put  into  a  small  paper  bag,  which  was  then  sealed  ;  and 
the  bags  so  secured  were  sent  to  the  various  rooms  in  which  the  men 
worked.  The  foreman  of  each  of  such  rooms  then  distributed  the  bags 
containing  the  wages  among  the  men  under  his  charge.  When  a  mis- 
take occurred  the  workman  affected  thereby  took  his  bag  to  one  Francis 
Cuflain  (the  clerk)  to  have  the  mistake  rectified. 

On  the  31st  day  of  October  there  was  due  to  the  prisoner  the  sum 
of  sixteen  shillings  and  eight  pence,  and  after  the  workmen  had  been 
paid  their  wages  the  prisoner  came  to  Cufflin  and  said  that  he  was 
three  pence  short,  and  gave  him  the  bag  into  which  his  money  had 
been  put.  The  top  of  the  bag  had  been  torn  off",  and  the  bag  was 
empty.  Another  workman  named  Jinks  had  also  come  to  Cufflin  for 
a  correction  in  his  money,  stating  that  fivepence  or  sixpence  was  due 

1  Concurring  opinions  were  delivered  by  Lord  Coleridge,  C.  J.,  and  Denman,  J. 
Grove  and  Hawkins,  JJ.,  Pollock  and  Huddleston,  BB.,  also  concurred. 

In  accordance  with  the  opinion  of  Smith,  J.,  see  Reg.  v.  Jacobs,  12  Cox  C.  C 
151  ;  Bailey  i-.  State,  58  Ala.  414. 

In  accordance  with  the  opinion  of  Cave,  J.,  see  State  v.  Ducker,  8  Or.  394.  —  Ed, 


582  REGINA    V.   FLOWERS.  [CHAP.  VIII. 

to  him,  and  had  handed  to  Cufflin  his  bag  with  seven  shillings  and 
eleven  pence  halfpenny  in  it.  Cufflin  thereupon  gave  the  prisoner  by 
mistake  Jinks's  bag,  and  also  three  pence  in  copper,  into  his  hand,  and 
the  i)risoner,  having  received  Jinks's  bag,  went  away  iuimediately, 
and  in  the  presence  of  one  of  his  fellow-vvorkincn  emptied  the  contents 
of  Jinks's  bag  into  his  hand,  saying,  ^-The  biter  has  got  bit;  he  has 
paid  me  double  wages."  He  then  turned  to  another  man  and  said, 
''  Come  on,  we  '11  go  and  have  a  drink  on  it." 

At  the  close  of  the  case  for  the  prosecution,  it  was  submitted  on 
behalf  of  the  prisoner  that  there  was  no  case  to  go  to  the  jury,  as  the 
evidence  failed  to  show  that  the  prisoner  at  the  time  he  received  the 
seven  shillings  and  eleven  pence  halfpenny  from  Cufflin  had  the  ani- 
mits  furandi,  or  guilty  mind,  e;;sential  to  constitute  the  offence  of  lar- 
ceny, and  that  any  subsequent  fraudulent  appropriation  of  the  money 
by  the  prisoner  was  immaterial  in  so  far  as  the  offence  of  larceny  was 
concerned. 

The  learned  Recorder,  however,  held  that  there  was  evidence  to  go 
to  the  jury  of  the  prisoner  having  the  animus  furandi  at  the  time  he 
received  from  Cufflin  the  money,  and  he  also  ruled,  in  deference  to  the 
opinion  of  certain  of  the  learned  judges  in  Regina  v.  Ashwell,  53 
L.  T.  Rep.  N.  S.  773  ;  16  Cox  C.  C.  1  ;  16  Q.  B.  Div.  190  ;  55  L.  J. 
65,  M.  C,  that  if  the  prisoner  received  the  money  innocently  but  after- 
wards fraudulently  appropriated  it  to  his  own  use,  he  was  guilty  of  larceny. 
Having  directed  tlie  jury  to  this  effect,  lie  put  to  them  the  following 
questions,  name!}'  :  — 

1.  Did  the  prisoner,  from  the  time  he  received  from  Cufflin  the  bag 
containing  the  seven  shillings  and  eleven  pence  halfpenny,  know  that 
it  did  not  belong  to  him?     To  this  the  jury  answered,  No. 

2.  Did  the  prisoner,  having  received  the  bag  and  its  contents  inno- 
cently, afterwards  fraudulently  appropriate  them  to  his  own  use?  And 
to  this  the  jury  answered,  Yes. 

The  learned  Recorder  thereupon  directed  a  verdict  of  guilty  to  be 
entered  on  the  first  count  of  th'?  indictment,  which  was  that  above  set 
out,  and  reserved  the  question  for  the  consideration  of  this  court 
-whether,  the  jury  not  having  found  affirmatively  that  the  prisoner  had 
the  animus  furandi  at  the  time  he  received  the  seven  shillings  and 
eleven  pence  halfpenny  from  Cufflin,  he  could  be  rightly  convicted  of 
larceny  by  reason  of  the  subsequent  fraudulent  appropriation  by  him 
of  the  said  money  to  his  own  use. 

No  one  appeared  on  behalf  of  the  prosecution  or  the  prisoner. 

Lord  Coleridge,  C.  J.  This  case  might  have  raised  a  very  subtle 
and  interesting  question.  The  manner  in  which  the  learned  Recorder 
has  stated  it,  however,  raises  a  question  wliich  is  distinguishable  from 
that  which  was  raised  in  the  case  of  Regina  v.  Ashwell.  Now,  in  that 
case,  the  judges  who  decided  in  favor  of  the  conviction  never  meant 
to  question  that  which  has  been  the  law  from  the  beginning,  and  to 
hold  that  the  appropriation  of  chattels  which  had  previously  been  inno- 


SECT.  II.]  REGINA   V.    FLOWERS.  583 

centl}'  received  should  amount  to  the  offence  of  larceny.  If  that  case 
is  referred  to,  it  will  be  seen  that  I  myself  assumed  it  to  be  settled  law 
that  where  there  has  been  the  delivery  of  a  chattel  from  one  person  to 
another,  subsequent  misappropriation  of  that  chattel  by  the  person 
to  whom  it  has  been  delivered  will  not  make  him  guilty  of  larceny 
except  by  statute.  In  the  present  case,  however,  the  learned  Recorder 
appears  to  have  directed  the  jury  that,  if  the  prisoner  received  the 
7.S.  ll^d.  innocently,  but  afterwards  fraudulently  appropriated  the 
money  to  his  own  use,  he  was  guilty  of  larceny.  But  no  such  rule 
was  intended  to  be  laid  down  in  Regiua  v.  Ashwell,  and  the  direction 
of  the  learned  Recorder  was  not,  in  my  opinion,  in  accordance  with 
that  decision.  It  is  quite  possible  for  the  jury  to  have  considered  con- 
sistently with  that  direction  that  a  fraudulent  appropriation,  six  months 
after  the  receipt  of  the  money,  would  justify  tliem  in  finding  the  pris- 
oner guilty  of  larceny.  The  question  we  are  asked  is,  whether  the  jury 
not  having  found  affirmatively  that  the  prisoner  had  the  animus  fur  audi 
at  the  time  he  received  the  money,  he  was  rightly  convicted  of  larceny 
by  reason  of  the  subsequent  fraudulent  appropriation.  In  my  opinion 
he  was  not.  The  judgment  of  those  judges  who  affirmed  the  convic- 
tion in  Regina  v.  Ashwell,  if  carefully  read,  shows  that  they  considered 
that  to  justify  a  conviction  for  larceny  there  must  be  a  taking  posses- 
sion simultaneously  with  the  formation  of  the  fraudulent  intention  to 
appropriate,  and  that  was  not  the  case  here. 

"Manistt,  J.  I  am  of  the  same  opinion.  The  difference  of  opinion 
among  the  judges  who  decided  the  case  of  Regina  v.  Ashwell  was  in 
the  appplication  to  the  particular  facts  in  that  case  of  the  settled  prin- 
ciple of  law  that  the  innocent  receipt  of  a  chattel,  coupled  with  the 
subsequent  fraudulent  appropriation  of  that  chattel,  does  not  amount 
to  larceny.  And  while  certain  of  the  judges  were  of  opinion  that  there 
had  been  a  fraudulent  taking  and  not  an  innocent  receipt,  and  held  that 
Ashwell  had  been  guilty  of  larceny,  the  others,  on  the  contrary,  were 
of  opinion  that  there  had  been  an  innocent  receipt,  and  that  therefore 
there  had  been  no  larceny.  I  am  glad  to  think  that  the  old  rule  of  law 
remains  unaffected. 

Hawkins,  J.  The  old  rule  of  law  was  not  questioned  by  any  of 
the  judges  in  Regina  v.  Ashwell.  This  case  is  distinguishable,  for 
here  the  learned  Recorder  told  the  jury  that  if  the  prisoner  received 
the  7s.  l\\cl  innocently  but  afterwards  fraudulently  appropriated  that 
money  to  his  own  use,  he  was  guilty  of  larceny.  It  appears  clear  to 
me  that  that  direction  could  not  be  right,  and  that  the  learned  Recorder 
misapprehended  the  rule  of  law. 

Day,  J.  I  was  one  of  those  who  dissented  from  affirming  the  con- 
viction in  Regina  v.  Ashwell,  and  have  only  to  add  that,  in  my  opinion, 
this  conviction  cannot  be  supported. 

Grantham,  J.     I  am  of  the  same  opinion. 

Conviction  qtiashed. 


:< 


584  REGINA   V.    HEHIR.  [CHAP.  VIII. 

REGINA  V.  HEHIR. 

Court  of  Crown  Cases  Reserved,  Ireland.     1895. 

[Reported  18  Cox  C.  C.  267.1] 

Case  reserved  by  the  Right  Hon.  the  Lord  Chief  Baron,  as  follows: 
At  the  Assizes  for  the  Munster  Winter  Assize  County,  1894,  held  at 
Cork  under  the  provisions  of  the  Munster  Winter  Assize  County  Order, 
1864,  Denis  Hehir  was  tried  before  me  and  a  common  jury  for  the 
larceny  of  "nine  pounds  sterling,  of  the  goods  and  chattels  of  one 
John  Leech ;  "  but  during  the  course  of  the  trial,  upon  the  application 
of  Mr.  Bourke,  Q.  C,  counsel  for  the  Crown,  I  allowed  the  indictment 
to  be  amended  by  striking  out  the  wOrds  "  nine  pounds  sterling,"  and 
substituting  therefor  the  words  ''a  ten  pound  note."  A  copy  of  the 
indictment  is  contained  in  the  Appendix, 

Evidence  was  given  that  John  Leech,  the  master  of  the  brigantine 
Uzziah,  which  was  then  in  Limerick,  engaged  the  prisoner,  Denis 
Hehir,  to  assist  in  the  discharge  of  the  cargo.  On  the  20th  day  of 
September  last  Leech  owed  Hehir  for  work  done  in  such  discharge  the 
sum  of  21.  8s.  dd.  For  the  purpose  of  paying  this  sum  Leech,  on  said 
20th  day  of  September,  handed  the  prisoner  nine  shillings  in  silver  and 
two  bank  notes,  each  of  which  both  Leech  and  the  prisoner  believed  to 
be  a  U.  note.  One  of  these  notes  was  in  fact  a  10^.  note.  The  prisoner 
left  taking  away  the  two  notes  with  him.  Within  twenty  minutes  after- 
wards Leech  discovered  his  mistake  and  went  in  search  of  the  prisoner, 
whom  be  found  within  half  an  hour  after  he  had  given  him  the  notes. 
Leech  told  tlie  prisoner  that  he  had  given  him  a  10/.  note  instead 
of  a  1/.  The  prisoner  alleged  that  he  had  already  changed  both  the 
notes.  There  was  evidence  that  at  the  time  when  the  prisoner  first 
became  aware  that  the  note  was  for  10/.  (which  was  a  substantial 
period  after  it  had  been  handed  to  him  by  Leech)  he  fraudulently  and 
without  colour  of  right  intended  to  convert  the  said  note  to  his  own  use, 
anipl  to  permanently  deprive  the  said  John  Leech  thereof,  and  that  to 
effectuate  such  intention  the  said  prisoner  shortly  afterwards  changed 
the  said  note  and  disposed  of  the  proceeds  thereof. 

Mr.  Bourke  referred  me  to  Reg.  v.  Ash  well  (16  Cox,  C.  C.  1)  and 
Reg.  V.  Flowers  (16  Cox  C.  C.  33  ;  54  L.  T.  Rep.  547). 

In  order  to  have  an  authoritative  decision  upon  the  question,  upon 
which  the  Court  for  Crown  Cases  Reserved  in  England  was,  in  Reg.  v. 
Ashwell,  equally  divided,  I  left  the  case  to  the  jury,  who  found  the 
prisoner  guilty,  and  I  reserved  for  this  Court  the  question  hereinafter 
stated.  I  allowed  the  prisoner  to  remain  out  on  bail  to  come  up  for 
sentence  at  the  next  assizes  for  the  county  of  the  city  of  Limerick. 

1  The  official  report  (189.5),  2  Ir.  709,  gives  the  opinions  at  length.  —  Ed. 


SECT.  II.]  KEGINA   V.    HEIIIR.  585 

I  request  the  opinion  of  this  Court  upon  the  question,  '^  "Whether  I 
ought  to  have  directed  a  verdict  of  acquittal  by  reason  of  the  prisoner 
not  having  had  the  a/iu/ms  funiiidl  wlien  Leech  handed  him  the  10/. 
note?" 

Madden,  J.,  said :  I  consider  the  conviction  in  the  present  case  was 
good  at  common  law.  The  law  being  the  same  in  both  countries,  the 
English  cases  are  a[)plicable.  We  are  not,  however,  absolved  b\-  Rog. 
V.  Ashwell  from  the  dut}'  of  forming  an  independent  judgment.  Does 
the  evidence  show  the  taking  b}'  Hehir  to  have  been  invito  dominif 
If  the  handing  of  the  note  by  Leech  to  Hehir  amounted  to  deliver}-,  no 
fraudulent  intention  would  suffice  to  constitute  larceny.  There  was  a 
fiscal  transfer.  Men  are  presumed  to  know  the  consequences  of  their 
own  acts.  Does  the  transfer  of  physical  possession,  made  under  such 
a  mistake,  amount  to  a  delivery  of  legal  possession?  I  think  not,  if  it 
is  accepted  under  a  common  mistake.  If  the  owner  intends  the  specific 
property  to  pass,  it  is  not  larcen}';  but  where  tliere  is  a  mistake  as  to 
identity,  it  is  different.  There  must  be  intelligent  delivery,  and  not  the 
mere  physical  fact  from  which  intelligence  is  absent.  I  rest  my  judg- 
ment on  the  fact  that  the  mistake  was  not  one  of  value,  but  of  identity; 
not  the  paper  jyer  se,  but  the  mone^'  it  represents.  The  case  would  be 
plainer  if  the  exchange  were  carried  on,  as  in  some  nations,  b}'  means 
of  shells  or  precious  stones.     A  mistake  between  a  10/.  note  and  a  1/.  u,^ 

is  the  same.  An}'  consent  given  or  act  done  in  consequence  of  such 
mistake  can  have  no  legal  value  whatever.  The  case  of  Merr}'  v. 
Green  presents  no  substantial  or  essential  difference  to  the  present 
case.  It  was  a  case  of  transfer  of  ph3'sical  possession.  Deliver}'  was 
there  made  in  ignorance  of  the  existence  of  the  chattel.  In  either  case 
the  dominus  remained  invitus,  for  tlie  element  of  intelligent  delivery 
was  wanting.  Cases  of  finding  do  not  throw  much  light  on  the  ques- 
tion. Assuming  the  dombivs  to  be  invitns,  was  there  any  felonious 
taking  of  tlie  money  at  all?  In  Reg.  r.  Middleton  the  question  was  not 
as  to  the  effect  of  knowledge  coincident  with  the  taking.  The  rule 
which  governs  this  case  is  simple  :  it  is,  "  A  man  to  whom  a  chattel  is 
delivered  under  a  mistake  as  to  its  identity  does  not  thereby  obtain 
legal  possession  ;  and  if  he  subsequently  learns  the  mistake  and  retains 
its  possession,  he  is  guilty  of  larceny." 

Gibson,  J.,  said  :  On  the  question  of  consent  or  non-consent  there  is 
no  substantial  difference  between  a  bank-note  and  any  other  chattel. 
First,  as  to  acquisition.  Legal  possession  imports  knowledge.  Here 
there  was  a  physical  delivery  without  knowledge.  Until  knowledge 
the  law  should  not  attribute  to  the  taker  the  object  of  taking  without 
consent.  If  upon  discovery  he  elects  to  return  the  chattel,  then  it 
amounts  to  custody  rather  than  possession  ;  if  he  appropriates,  then 
either  the  possession  becomes  wrongful,  or  then  and  there,  for  the  first 
time,  there  is  a  taking  out  of  possession  of  the  owner  of  the  chattel, 
which  previously  was  lost ;  he  commits  a  tort.  Secondly,  as  to  the 
lawfulness  of  the  possession.     Consent  to  possession  obtained  by  fraud 


586  KEGINA   V.   HEHIR.  [CHAP.  VIII. 

or  force  animo  furandi  is  unlawful.  Physical  delivery  is  evidence  of 
consent,  but  is  rebuttable.  Even  without  animus  furandi  a  taker  who 
at  delivery  is  aware  of  a  mistake,  his  possession  is  not  innocent.  The 
taker  there  is  not  misled.  The  question  of  consent  is  one  of  substance, 
not  of  form.  Delivery  under  mistake  does  not  work  an  estoppel.  The 
taker  is  bound  to  give  up  the  chattel  on  demand.  The  protection 
given  to  mistake  does  not  extend  to  wilful  fraud.  I  express  no  opin- 
ion on  the  question  of  bailment ;  it  was  not  argued.  Of  seven  cases 
relating  to  this  priiici[)le  of  mistake,  only  two  are  against  the  view  I 
take.  The  cases  on  lost  property  are  distinguishable.  The  bureau 
cases  seem  in  direct  conflict  with  the  post-office  cases.  Hehir,  who  is 
morally  a  rogue,  is  legally  a  thief 

Holmes,  J.,  said :  All  acts  to  carry  legal  consequences  must  be  acts 
of  the  mind.  The  prosecutor  did  not  intend  to  give,  or  know  that  he 
was  giving,  and  Hehir  did  not  intend  to  receive,  or  know  he  was  receiv- 
ing;  therefore  possession  remained  in  the  owner.  When  the  taker 
discovers  that  he  has  a  chattel  which  the  owner  did  not  intend  to  give, 
he  then  takes  it  the  first  time,  and  if  he  retains  it  he  is  guilty  of 
larceny. 

Murphy,  J.,  said  :  As  to  the  moral  aspect  of  the  defendant's  conduct 
it  was  clearly  just  as  bad  as  if  he  had  picked  the  owner's  pocket.  But 
it  is  said  that  in  consequence  of  the  means  he  adopted  he  is  not  guilty 
of  larcen}'.  The  case  is  governed  by  Eeg.  v.  Ashwell,  where  fourteen 
judges  were  equall}'  divided. 

Johnson,  J.,  said  :  In  my  opinion  Hehir  is  not  guilty,  because  a  man 
who  honestly  receives  a  chattel  with  consent  of  the  true  owner  cannot 
be  found  guilty  of  larceny.  Larceny  by  common  law  is  felonious  taking 
and  carrying  away  from  a  person.  It  must  be  felonious,  and  this  intent 
to  steal  must  be  when  it  comes  to  his  hand.  There  must  be  an  actual 
taking.  Hawkins,  in  his  "  Pleas  of  the  Crown,"  adopts  Coke's  defini- 
tion of  larceny.  We  are  not  here  concerned  with  what  the  law  of 
dishonesty  is ;  the  severity  of  the  ancient  criminal  law  led  to  the  dis- 
tinction I  refer  to,  but  still  the  principle  of  law  remains  to-day  the 
same.  Where  no  trespass  is  there  is  no  larceny  at  common  law.  Here 
there  was  no  trespass.  Leigh  gave  Hehir  two  notes,  1^.  and  10^.  He 
intended  to  give  Hehir  the  property  in  one  of  the  notes  ;  what  dif- 
ference is  there  from  the  giving  of  the  other  note  at  the  same  time? 
Hehir  had  no  animus  faranJi  when  he  took  the  notes  and  obtained 
possession  of  them. 

Andrevts,  J.,  said:  I  think  the  conviction  ought  to  be  quashed. 
I  think  the  property  in  the  note  immaterial  in  this  case ;  no  doubt  it 
did  not  pass  to  the  prisoner.  When  Leech  handed  the  notes  to  Hehir 
he  intended  to  give  Hehir  possession  of  the  thing  he  handed.  His 
intention  arose  from  mistake ;  that  does  not  show  that  the  intention 
does  not  exist.  In  fact,  he  handed  the  note  to  Hehir,  knowing  that  he 
was  handing  it  to  him.     A  man  can  take  and  be  in  possession  of  a 


SECT.  11.]        •  KEGINA    V.    HEIIIU.  587 

chattel  of  which  he  does  not  know  the  viihie,  or  believes  it  to  be  of  a 
different  vaUie  or  quality  from  its  real  value  or  qualit}'.  As  regards 
taking,  it  is  an  absolute  fiction  to  sa}'  that,  although  Ilehir  actually 
took  the  note  when  handed  to  him,  he  did  not  then  take  it,  but  only  at 
a  subsequent  time  when  lie  discovered  it  was  something  different,  and 
that  he  then  took  it,  when  he  really  did  not  take  it  at  all,  for  he  had  it 
for  some  time  in  his  possession.  This  is  to  ignore  the  actual  taking, 
and  make  a  mere  movement  of  the  mind  amount  to  an  actual  taking. 
At  the  time  Hehir  received  possession  of  the  note  he  got  lawful  posses- 
sion of  it,  and  committed  no  trespass  whatever.  He  took  the  10/.  note 
innocently  and  with  the  consent  of  the  owner,  not  fraudulently  ;  there- 
fore he  is  not  guilty  of  larcen}'.  In  Reg.  v.  Ashwell  the  conviction  was 
not  affirmed,  but  stood  merely  because  it  was  not  quashed.  It  is  for 
the  Legislature  to  make  this  transaction  larceny. 

O'Brien,  J.,  said  :  The  question  of  consent  did  not  exist  in  the  owner's 
mind,  as  to  the  10/.  By  his  own  act  he  put  it  into  the  possession  of 
Hehir.  The  latter  was  not  guilt}'  of  larcen}'.  In  order  to  make  him  out 
so,  we  must  hold  that  he  "  felonioush'  took,"  when  in  fact  he  did  not 
take  at  all.  "VYe  must  invent  a  new  criminal  category  ;  he  is  a  "finder- 
out,"  by  an  operation  of  mind.  The  asportacit  disappears  altogether 
in  this  case.  The  corporeal  transfer  cannot  be  left  out  in  the  idea  of 
larcen}'.  What  was  the  position  of  Hehir  between  the  taking  of  the 
article  and  the  discoverv  of  the  mistake  In*  him?  Excusable  detention, 
I  suppose.  He  is  then  a  party  innocent  at  first,  and  afterwards  guilt}-. 
I  do  not  consider  that  Reg.  v.  Ashwell  levels  all  the  previous  cases.  It 
was  a  divided  judgment.  No  crime  has  been  committed  in  this  case, 
only  a  moral  transgression,  as  to  which  the  law  has  not  hitherto  given 
effect  to  the  views  of  those  who  think  to  compass  the  sea  bv  undertak- 
ing to  push  the  confines  of  crime  into  the  boundless  regions  of  dis- 
honesty.    The  conviction  should  be  reversed. 

Palles,  C.  B.,  said  :  I  admit  that  the  prisoner  in  this  case  was  a  dis- 
honest one,  but  it  is  punishable  not  by  the  judges  but  by  the  Legislature. 
Reg.  '-'.  Mucklow,  Reg.  v.  Davies,  and  Reg.  v.  Middleton  are  all  against 
the  conviction.  Reg.  v.  Ashwell  said  the  two  first  were  overruled.  In 
it  the  opinion  of  seven  judges  was  adA^erse  to  a  conviction  in  a  case  like 
the  present.  For  fifty-eight  years  there  was  an  unbroken  series  of  de- 
cisions that  acts  similar  to  that  of  the  prisoner  were  not  larceny.  In 
Reg.  V.  Ashwell  a  technical  rule  maintained  the  conviction.  Cartwright 
V.  Green  and  Merr}'  v.  Green,  cited  for  the  Crown,  are  civil  cases. 
I  doubt  the  right  of  the  Court  for  Crown  Cases  Reserved  in  England 
to  reverse  a  previous  decision  of  their  own  Court  in  a  previous  case. 
There  is  no  inconsistency  between  these  two  civil  cases  (neither  of 
which  was  decided  by  a  court  of  equal  authority  with  that  of  the  Court 
for  Crown  Cases  Reserved)  and  the  criminal  cases.  In  both  the  bailor 
and  bailee  were  ignoiant  of  the  existence  of  the  chattel.  There  was  no 
intentional  manual  delivery  of  the  chattel.     There  was  that  knowledge 


588  KEGINA   V.    HEUIK.  [CHAP.  VIII. 

in  the  present  case.  Reg.  v.  Ashwell  has  not  a  single  prior  case  to 
support  it.  It  was  a  case  of  first  impression.  The  ground  upon  which 
it  was  arrived  at  is  given  in  the  judgment  of  Coleridge,  C.  J.,  in  whose 
mind  there  must  have  been  some  serious  misapprehension.  I  hold  that 
it  would  not  be  competent  to  the  court  in  England  to  uphold  the  con- 
viction in  Reg.  v.  Ashwell,  and  it  is  only  by  following  that  case  that  it 
can  be  upheld  in  the  present  case.  As  regards  written  contracts,  see 
Scott  V.  Littledale  (8  E.  &  B.  815).  In  written  instruments  the  inten- 
tion must  be  gathered  from  the  writing.  Why  should  a  man  not  be 
held  to  intend  that  which  is  the  consequence  of  his  act?  So  long  as 
Hehir  believed  the  note  to  be  for  1/.,  the  prosecutor  cannot  be  heard 
to  say  that  he  had  not  the  intention  of  parting  with  it,  and  till  the  dis- 
cover3'  of  the  mistake  Hehir  had  lawful  possession  of  it.  There  is  no 
difference  between  the  case  here  and  that  of  a  person  counting  notes 
and  giving  nine  notes  instead  of  ten.  Hehir  might  lawfully  detain  the 
lOZ.  note  till  he  had  an  opportunity  of  changing  it  and  giving  back  91. 
to  Leech.  Hehir  must  have  had  lawful  possession  antecedent  to  the 
discover}'  of  the  mistake,  and  that  discovery  cannot  b}'  relation  back 
change  the  character  of  the  antecedent  possession,  which  was  Hehir's 
possession,  into  that  of  Leech.  Hehir  was  not  guilt}-  of  larceny  at 
common  law. 

Sir  Peter  O'Brien,  Bart,  C.  J.,  in  agreeing  with  the  Chief  Baron, 
referred  to  Reg.  v.  Flower,  and  said :  "  The  innocent  receipt  of  a 
chattel  and  its  subsequent  appropriation  does  not  constitute  larceii}'. 
Leech  gave  unreservedl}',  Hehir  honestly  received.  The  fact  of  his 
mistaken  belief  made  Leech  give  the  note  without  any  reservation 
whatever.  Reg.  v.  Mucklow  was  recognized  in  Reg.  v.  Davies,  although 
not  argued  at  the  Bar.  It  was  a  moot  point  among  the  judges.  It  is 
not  consistent  with  Cartwright  v.  Green.  There  was  here  no  felonious 
taking.     However  we  dislike  the  law  we  must  follow  it. 

The  conviction  was  accordingly  quashed. 


SECT.  II.]  REGINA    V.    TOWNLEY.  589 

SECTION   II.  (continued), 
(d)  Tortious  Possession. 

REGINA   V.    TOWNLEY. 

Crown  Case  Heserved.     1871. 

[Reported  12  Cox  C.  C.  59.] 

Case  reserved  for  the  opinion  of  this  court  b}-  Mr.  Justice  Black- 
burn. 

The  prisoner  and  one  George  Dunkley  were  indicted  before  me  at  the 
Nortlianipton  Spring  Assizes  for  stealing  126  dead  rabbits. 

In  one  count  they  were  laid  as  the  property  of  William  HoUis  ;  in 
another  as  being  the  property  of  the  Queen. 

There  were  also  counts  for  i-eceiving. 

It  was  proved  that  Selsey  Forest  is  the  proi)ert3'  of  her  Majesty. 

An  agreement  between  Mr.  Hollis  and  the  Commissioners  of  the 
Woods  and  Forests  on  behalf  of  her  Majesty  was  given  in  evidence, 
which  I  thought  amounted  in  legal  effect  merel}'  to  a  license  to  Mr. 
Hollis  to  kill  and  take  away  the  game,  and  that  the  occupation  of  the 
soil  and  all  rights  incident  thereto  remained  in  the  Queen.  No  point, 
however,  was  reserved  as  to  the  proof  of  the  property  as  laid  in  the 
indictment. 

The  evidence  showed  that  Mr.  HoUis's  keepers,  about  eight  in  the 
morning  on  tlie  23d  of  September,  discovered  120  dead  and  newly  killed 
rabbits  and  about  400  yards  of  net  concealed  in  a  ditch  in  the  forest 
behind  a  hedge  close  to  a  road  passing  through  the  forest. 

The  rabbits  were  some  in  bags  and  some  in  bundles,  strapped  to- 
gether b}^  the  legs,  and  had  evidently  been  placed  there  as  a  place  of 
deposit  b}'  those  who  had  netted  the  rabbits. 

The  keepers  lay  in  wait,  and  about  a  quarter  to  eleven  on  the  same 
day  Townle}'^  and  a  man,  who  escaped,  came  in  a  cab  driven  by  Dunk- 
ley  along  the  road.  Townley  and  the  man  who  escaped  left  the  cab  in 
charge  of  Dunkley  and  came  into  the  forest  and  went  straight  to  the 
ditch  where  the  rabbits  were  concealed  and  began  to  remove  them. 

The  prisoners  were  not  defended  by  counsel. 

It  was  contended  by  the  counsel  for  the  prosecution  that  the  rabbits 
on  being  killed  and  reduced  into  possession  by  a  wrong-doer  became 
the  property  of  the  owner  of  the  soil,  in  this  case  the  Queen  (Blades  v, 
Higgs,  7  L.  T.  N.  S.  798,  834)  ;  and  that  even  if  it  was  not  larceny  to 
kill  and  carr}'  awa}'  the  game  at  once,  it  was  so  here,  because  the  kill- 
ing and  carr3'ing  away  was  not  one  continued  act. 

1  Hale,  P.  C.  510,  and  Lee  v.  Risdon,  7  Taunt.  191,  were  cited. 

The  jury,  in  answer  to  questions  from  me,  found  that  the  rabbits 


.^/ 


590  REGINA   V.   TOWNLEY.  [CHAP.  VIII. 

bad  been  killed  by  poachers  in  Seise}-  Forest,  on  land  in  the  same  occu- 
pation and  ownership  as  the  spot  where  they  were  found  hidden. 

That  Towiile-y  removed  them,  knowing  that  the}-  had  been  so  killed, 
but  that  it  was  not  proved  that  Dunkle}-  had  any  such  knowledge. 

I  thereupon  directed  a  verdict  of  not  guilt}'  to  be  entered  as  regarded 
Dunkley,  and  a  verdict  of  guilty  as  to  Townley,  subject  to  a  case  for 
the  Court  of  Criminal  Appeal. 

It  is  to  be  taken  as  a  fact  that  the  poachers  had  no  intention  to 
abandon  the  wrongful  possession  of  the  rabbits  which  they  had  acquired 
by  taking  them,  but  placed  them  in  the  ditch  as  a  place  of  deposit  till 
they  could  conveniently  remove  them. 

The  question  for  the  court  is,  whether  on  these  facts  the  prisoner 
was  properly  convicted  of  larceny. 

The  prisoner  was  admitted  to  bail. 

Colin  Blackburn. 

No  counsel  appeared  to  argue  on  either  side. 

BoviLL,  C.  J.  {after  stating  the  facts).  The  first  question  that 
arises  is  as  to  the  nature  of  the  property.  Live  rabbits  are  animals 
ferce  natiirce,  and  are  not  the  subject  of  absolute  property  ;  though  at 
the  same  time  they  are  a  particular  species  of  property  ratione  soli,  — 
or  rather  the  owner  of  the  soil  has  the  right  of  taking  and  killing  them, 
and  as  soon  as  he  has  exercised  that  right  they  become  the  absolute 
property  of  the  owner  of  the  soil.  That  point  was  decided  in  Blades  v. 
Higgs,  supra.,  as  to  rabbits,  and  in  Lonsdale  v.  Rigg,  26  L.  J.  196, 
Ex.,  as  to  grouse.  In  this  case  the  rabbits  having  been  killed  on  land 
the  property  of  the  Crown,  and  left  dead  on  the  same  ground,  would 
therefore  in  the  ordinary  course  of  things  liave  become  the  propert}'  of 
the  Crown.  But  before  a  person  can  be  convicted  of  larceny  of  a  thing 
not  the  subject  of  larceny  in  its  original  state,  as,  e.  ^.,  of  a  thing  at- 
tached to  the  soil,  there  must  not  only  be  a  severance  of  the  thing  from 
the  soil,  but  a  felonious  taking  of  it  also  after  such  severance.  Such 
is  the  doctrine  as  applied  to  stealing  trees  and  fruit  therefrom,  lead  from 
buildings,  fixtures,  and  minerals.  But  if  the  act  of  taking  is  continu- 
ous with  the  act  of  severance,  it  is  not  larceny.  The  case  of  larceny  of 
animals  ferce  7iaturre  stands  on  the  same  principle.  Where  game  is 
killed  and  falls  on  anothei-'s  land,  it  becomes  the  property  of  the  owner 
of  the  land  ;  but  the  mere  fnet  tliat  it  has  fallen  on  the  land  of  another 
does  not  render  a  person  taking  it  up  guilty  of  larceny,  for  there  must 
be  a  severance  between  the  act  of  killing  and  the  act  of  taking  the  game 
away.  In  the  present  case  we  must  take  it  that  the  prisoner  was  one 
of  the  poachers  or  connected  with  them.  Under  these  circumstances 
we  might  come  to  the  conclusion  that  it  was  a  continuous  act,  and  that 
the  poachers  netted,  killed,  packed  up,  and  attempted  to  carry  away 
the  rabbits  in  one  continuous  act,  and  therefore  that  the  prisoner  ought 
not  to  have  been  convicted  of  larcen3\ 

Martin,  B.     I  am  of  the  same  opinion.     It  is  clear  that  if  a  person 


SECT.  II.J  EEGINA    V.    TOWXI EY.  591 

kills  rabbits  and  at  the  same  tiim;  carries  them  awa}',  he  is  not  guilty 
of  larceny.  Then,  when  he  kills  rabbits  and  goes  and  hides  them  and 
comes  back  to  carry  them  avva}',  can  it  be  said  that  is  larceny?  A 
passage  from  Hale's  P.  C.  510,  '"■  If  a  man  comes  to  steal  trees,  or  the 
lead  off  a  church  or  house,  and  sever  it,  and  after  about  an  hour's  time 
or  so  come  and  fetch  it  away,  it  is  felony,  because  the  act  is  not  con- 
tinuated,  but  interpolated,  and  in  that  interval  the  property  lodgeth  in 
the  right  owner  as  a  chattel,  and  so  it  was  argued  by  the  Court  of  King's 
Bench,  9  Car.  1,  upon  an  indictment  for  stealing  the  lead  off  West- 
minster Abbe}',"  was  relied  on  by  the  prosecution.  There  is  also  a 
dictum  of  Gibbs,  C.  J.,  to  the  same  effect  in  Lee  v.  Risdon,  7  Taunt. 
191.  I  am  not  insensible  to  the  effect  of  those  dicta;  but  here  we 
must  take  it  as  a  fact  that  the  poachers  had  no  intention  to  abandon 
possession  of  the  rabbits,  but  put  them  in  the  ditch  for  convenience 
sake  ;  and  I  concur  in  thinking  that  the  true  law  is  that,  when  the 
poachers  go  back  for  the  purpose  of  taking  them  awa}',  in  continuation 
of  the  original  intention,  it  does  not  amount  to  larcen}', 

Bramwell,  B.  Our  decision  does  not  appear  to  me  to  be  contrary 
to  what  Lord  Hale  and  Gibbs,  C.  J.,  have  said  in  the  passages  referred 
to.  If  a  man  having  killed  rabbits  on  the  land  of  another,  gets  rid  of 
them  because  he  is  interrupted  and  then  goes  away  and  afterwards 
comes  back  to  remove  the  rabbits,  that  is  a  larceny  ;  and  so,  if  on  being 
pursued,  he  throws  them  awa}' ;  and  it  is  difficult  to  perceive  any  dis- 
tinction where  the  owner  of  a  chattel  attached  to  the  freehold  finds  it  on 
his  land  severed,  and  the  person  who  severed  it  having  abandoned  it 
afterwards  comes  and  takes  it  away.  It  is  in  those  cases  so  left  as  to 
be  in  the  possession  of  the  true  owner,  and  the  act  is  not,  as  Lord  Hale 
expresses  it,  continuated.  In  this  case,  however,  the  rabbits  were  left 
by  the  poachers  as  trespassers  in  a  place  of  deposit,  though  it  hap- 
pened to  be  on  the  land  of  the  owner  ;  and  it  is  just  the  same  as  if  they 
had  been  taken  and  left  at  a  public  house  or  upon  the  land  of  a  neigh- 
bor. If  they  had  been  left  on  the  land  of  a  neighbor  or  at  a  public 
house,  could  it  have  been  said  to  be  larceny?  Clearlj'  not;  and  if  not 
why  is  it  larceny  because  the  poachers  left  them  in  a  place  of  deposit 
on  the  owner's  own  land?  It  seems  to  me  that  the  case  is  not  within 
the  dicta  of  Lord  Hale  and  Gibbs,  C.  J.,  but  that  here  the  act  was  con- 
tinuous, and  that  there  was  an  asportation  by  the  poachers  to  a  place 
of  deposit,  where  they  remained  not  in  the  owner's  possession. 

Byles,  J.  I  cannot  say  that  I  have  not  entertained  a  doubt  in  this 
case ;  but  upon  the  whole  I  think  that  this  was  not  larcen}'.  The 
wrongful  taking  of  the  rabbits  was  never  abandoned  by  the  poach- 
ers, for  some  of  the  rabbits  were  in  their  bags.  It  could  hardly  be  said 
that  if  a  poacher  dropped  a  rabbit  and  afterwards  picked  it  up  that 
could  be  converted  into  larcen}',  yet  that  would  follow  if  the  conviction 
were  upheld. 

Blackburn,  J.  I  am  of  the  same  opinion.  Larceny  has  always  been 
defined  as  the  taking  and  carrying  awav  of  the  goods  and  chattels  of 


592  KEGINA   V.    TOWNLEY.  [CHAP.  VIII. 

another  person  ;  and  it  was  verj-  early  settled  where  the  thing  taken  was 
not  a  chattel,  as  where  a  tree  was  cut  down  and  carried  awa}',  that  was 
not  larceny,  because  the  tree  was  not  taken  as  a  chattel  out  of  the  owner's 
possession  and  because  the  severance  of  the  tree  was  accompanied  by 
the  taking  of  it  away.  The  same  law  applied  to  fruit,  fixtures,  min- 
erals, and  the  like  tilings,  and  statutes  have  been  passed  to  make  steal- 
ing in  such  cases  larcen}'.  Though  in  the  House  of  Lords,  in  Blades  v. 
Higgs,  it  was  decided  that  rabbits  killed  upon  land  became  the  prop- 
erty of  the  owner  of  the  land,  it  was  expressly  said  that  it  did  not  fol- 
low that  ever}'  poacher  is  guilty  of  larceny,  because,  as  Lord  Cranworth 
said,  "Wild  animals  whilst  living,  though  the}-  are,  according  to  Lord 
Holt,  the  property  of  the  owner  of  the  soil  on  which  they  are  living,  are 
not  his  personal  chattels  so  as  to  be  the  subject  of  larceny.  They  par- 
take while  living  of  the  quality  of  the  soil,  and  are,  like  growing  fruit, 
considered  as  part  of  the  realt}'.  If  a  man  enters  my  orchard  and  fills 
a  wheelbarrow  with  apples,  which  he  has  gathered  from  m}'  trees,  he  is 
not  guilt}'  of  larceny,  though  he  has  certainly  possessed  himself  of  my 
property  ;  and  the  same  principle  is  applicable  to  wild  animals."  The 
principle  is  as  old  as  11  Year  Book  (par.  33),  where  it  is  reported  that 
a  forester  who  had  cut  down  and  carried  away  trees  could  not  be  ar- 
raigned for  larceny  though  it  was  a  breach  of  trust ;  but  it  was  said  it 
would  have  been  a  different  thing  if  the  lord  of  the  forest  had  cut  down 
the  trees  and  the  forester  had  carried  them  awa}-,  then  that  would  have 
been  larceny.  So  that  in  the  case  of  wild  animals  if  the  act  of  killing 
and  reducing  the  animals  into  possession  is  all  one  and  continuous, 
the  offence  is  not  larceny.  The  jury  have  found  in  this  case  that  the 
prisoner  knew  all  about  the  killing  of  the  rabbits,  and  that  they  were 
Iving  in  the  ditch.  It  is  clear  that  during  the  three  hours  they  were 
lying  there,  no  one  had  any  physical  possession  of  them  and  that  they 
were  still  left  on  the  owner's  soil ;  but  I  do  not  see  that  that  makes  any 
difference.  Then  there  is  the  statement  from  Hale's  P.  C.  510,  where 
it  is  said  that  larceny  cannot  be  committed  of  things  that  adhere  to  the 
freehold,  as  trees,  or  lead  of  a  house,  or  the  like,  yet  that  the  Court  of 
King's  Bench  decided  that  where  a  man  severed  lead  from  Westminster 
Abbey  and  after  about  an  hour's  time  came  and  fetched  it  away,  it  was 
felony,  because  the  act  is  not  continuous  but  interpolated;  and  Lord 
Hale  refers  to  Dalton,  c.  103,  p.  166;  and  Gibbs,  C.  J.,  expressed 
the  same  view  very  clearly  in  Lee  v.  Risdon.  Now  if  that  is  to  be  un- 
derstood as  my  brother  Bramwell  explained,  I  have  no  fault  to  find  with 
it;  but  if  it  is  to  be  said  that  the  mere  fact,  that  the  chattel  having  been 
left  for  a  time  on  the  land  of  the  owner  has  thereby  remained  the 
owner's  property,  and  that  the  person  coming  to  take  it  away  can  be 
convicted  of  larceny,  I  cannot  agree  with  it  as  at  present  advised.  If 
we  are  to  follow  the  view  taken  by  my  brother  Bramwell  of  these  authori- 
ties, they  do  not  apply  here,  for  no  one  could  suppose  that  the  poachers 
ever  parted  with  the  possession  of  the  rabbits.  I  agree  that  in  point 
of  principle  it  cannot  make  any  difference  that  the  rabbits  were  left  an 


SECT.  II.]  EEGINA   V.    FOLEY.  593 

hour  or  so  in  a  place  of  deposit  on  the  owner's  land.  The  passage  from 
Lord  Hale  may  be  understood  in  the  way  my  brother  Bramvvell  has 
interpreted  it,  and  if  so  the  facts  do  not  bring  this  case  within  it. 

Conviction  quashed.^ 


Y:'/ 


REGINA  V.  FOLEY. 
Crown  Case  Reserved,  Lieland.     1889. 

[Reported  26  Law  Reports  (Ireland),  299.] 

Case  reserved  by  Mr.  Justice  Gibson  as  follows  for  the  opinion  of 
this  court :  — 

The  accused,  Edward  Foley,  was  tried  before  me  at  Maryborough 
Summer  Assizes,  1889,  for  the  Queen's  County,  for  larceny  of  hay. 
The  indictment  was  at  common  law. 
/■  Foley  had  been  tenant  to  a  Mr.  Kemmis  of  part  of  the  lands  of 
/  Ballyadams  in  said  county,  but  his  tenancy  had  been  determined  by  a 
civil-bill  decree  in  ejectment,  dated  the  1st  January,  1888,  which  was 
duly  executed,  and  possession  taken  on  the  27th  April,  1888,  when  the 
house  on  the  premises  was  levelled. 

On  August  the  10th,  1888,  the  accused  was  seen  by  the  police  cutting 
meadow  on  the  said  lands  with  a  scythe.  On  the  llth  he  was  again 
seen  cutting  meadow  there.  A  poUce  constable  went  to  him  there  and 
said,  ''He  was  glad  some  one  would  be  responsible  for  the  cutting," 
when  Foley  replied,  "  He  might  as  well  have  it  as  the  landlord." 

On  the  13th  August  Foley  proceeded  to  rake  up  the  hay,  which  was 
then  lying  scattered  in  the  field,  and  put  it  into  a  cart.  He  took 
altogether  ten  or  twelve  cwt,  and  brought  it  awa}'  in  the  direction  of 
Athy. 

Mr.  Leamy,  counsel  for  the  prisoner,  contended  that  there  was  no 

larcen3%  as  the  indictment  was  at  common  law,  and  the  taking  was  one 

^continuous  act :  relying  on  The  Queen  v.  Townle}',  L.  R.  1  C.  C.  R.  315. 

'*^Mr.  MoUoy,  Q.  C,  for  the  Crown,  contra,  contended  that  the  hay 

was  to  be  deemed  in  the  possession  of  Mr.  Kerpmis  at  the  time  when 

the  prisoner  removed  it. 

In  reply  to  a  question  put  by  me  the  jury  said  that  the  prisoner  did 
not  abandon  possession  of  the  grass  cut  between  the  time  of  cutting 
and  time  of  removing  the  same. 

It  must  be  taken  tliat  Mr.  Kemmis  was  in  possession  of  the  evicted 
farm  at  the  time  when  the  grass  was  cut  and  removed.  There  was  no 
evidence  of  any  act  done  by  Mr.  Kemmis,  or  any  person  on  his  behalf, 
on  the  evicted  farm  from  the  date  of  eviction  until  the  removal  of  the 
hay ;  nor  was  there  any  evidence  of  an}'  act  done  by  the  prisoner  in 
reference  to  the  farm  or  the  grass  cut,  save  as  above  stated. 

1  Ace.  Reg.  V.  Fetch,  14  Cox  C.  C.  116.  —  Ed. 


594  EEGINA   V.   FOLEY.  [CHAP.  VIII. 

Mr.  Molloy,  Q.  C,  further  contended  that  there  was  no  evidence  to 
support  the  special  finding. 

I  advised  the  jury  to  convict  the  prisoner,  which  they  did,  but  I  did 
not  sentence  him,  and  he  stands  out  on  his  own  recognizance,  pending 
the  decision  of  this  case. 

The  question  for  the  court  is,  whether,  on  these  facts,  the  prisoner 
was  properly  convicted  of  larceny. 

J,  G.  Gibson.^ 
E.  Leamy,  for  the  prisoner. 

Molloy,  Q.  C,  with  him  T.  P.  Law,  Q.  C,  for  the  Crown. 
Gibson,  J.^  I  reserved  this  case  for  the  purpose  of  settling  a  ques- 
tion arising,  or  supposed  to  arise,  on  the  decision  in  Reg.  v.  Townle}', 
L.  R.  1  C.  C.  R.  315.  The  evidence  is  meagre.  Assuming  that  the 
cutting  of  the  meadow  by  the  accused  was  some  evidence  of  an  assump- 
tion of  possession  of  the  grass  cut,  there  was  no  evidence,  in  my  opinion, 
of  any  effective  possession  by  him  of  the  grass  so  cut  and  left  lying  on 
the  owner's  ground  from  that  time  until  it  was  carried  away,  —  though 
it  must  be  taken  that  Foley  did  not  intend  to  abandon  such  grass.  On 
these  facts  prisoner's  counsel,  relying  on  Reg  v.  Townle}',  L.  R.  1  C.  C. 
R.  315,  contended  that  the  prisoner  could  not  be  convicted  of  larceny-. 
The  authorities  cited  by  Mr.  Molloy,  Q.  C.  (to  which  may  be  added 
East,  PI.  Cr.,  vol.  2,  p.  587,  and  Gabbett,  Grim.  Law,  p.  557),  estabUsh 
that  where  a  thief,  after  severing  things  parcel  of  the  realty,  left  the 
chattels  so  severed  on  the  proprietor's  soil,  and  after  an  interval  came 
again  and  took  them  away  he  would  be  guilty  of  larceny  at  common  law, 
the  chattels  being  at  the  time  of  removal  in  the  constructive  possession 
of  the  rightful  owner.  The  principle  of  common  law  would  seem  to  be 
that,  when  the  wrong-doer's  actual  and  effective  possession  ceases*  he 
cannot  be  deemed  to  be  in  constructive  possession,  and  that  such  con- 
structive possession  of  the  severed  chattels,  crops,  fixtures,  or  other- 
wise, becomes  vested  in  the  rightful  owner,  on  whose  land  they  are 
left,  by  virtue  of  his  right  to  possession. 

For  the  prisoner  it  was  argued  that  Townley's  case,  L.  R.  1  C.  C.  R. 
315,  is  an  authority  against  this  view,  and  that  if  wrongful  possession  is 
once  acquired  by  the  thief,  the  fact  that  he  may  afterwards  before  re- 
moval cease  to  be  in  effective  occupation  and  control  is  immaterial,  if  he 
does  not  intend  to  relinquish  the  wrongful  possession,  and  in  pursuance 
of  his  original  intent  comes  and  takes  away  the  property. 

That  this  contention  may  not  be  entirely  without  color  is  shown  by 
the  way  Townley's  case,  L.  R.  1  C.  C.  R.  315,  is  treated  by  well-known 
writers.  Thus,  Mr.  R.  S.  Wright,  in  his  Essay  on  Possession,  at  p.  231, 
saj's  :  "  It  was  formerly  supposed  that  the  mere  leaving  of  the  thing  by 
the  taker  on  the  owner's  premises  for  a  time  of  itself  vested  a  posses- 
sion in  the  owner,  so  as  to  make  a  re-occupation  by  the  taker  a  trespass 

1  Arguments  are  omitted. 

2  Johnson,  J.,  and  Morris,  C.  J.,  delivered  opinions  in  favor  of  conviction,  and 
Harrison,  O'Brien,  and  Andrews,  JJ.,  concurred  with  the  majority  of  the  court. 


SECT.  II.]  REGINA   V.    FOLEY.  595 

and  {animus  furandi  being  present)  a  theft.  But  it  seems  clear  that 
such  a  relin(iuishuient  is  merely  evidence  of  an  abandonment,  general  or 
to  the  owner,  more  or  less  conclusive  according  to  the  circumstances." 
So  in  the  last  edition  of  Archbold  Criminal  Law,  at  p.  363,  it  is 
stated  there  is  no  larceny  unless  the  "  wrong-doer  had  between  the 
severance  and  the  taking  away  intended  to  abandon  his  wrongful  pos- 
session of  the  article  severed."  In  my  opinion  Townley's  case,  L.  R. 
1  C.  C.  R.  315,  does  not  decide  what  is  supposed.  The  continuity  of 
transaction  contemplated  by  the  common  law  as  excluding  larceny  may 
b'e'  considered  from  the  point  of  view  of  time,  act,  and  possession.  The 
principal  element  being  possession,  if  the  thief  is  in  continuous  posses- 
sion, the  occurrence  of  an  interval  of  time  between  the  taking  and  the 
carrjiug  away  can  of  itself  make  no  difference.  Townley's  case,  L.  K. 
l^C.  C.  R.  315,  only  decides  :  (1)  that  where  there  is  evidence  of  actual 
possession  continuing,  the  fact  that  there  is  an  interval  of  time  between 
the  taking  and  carrying  aw^ay  does  not  constitute  larceny  where  the 
wrong-doer's  intention  is  not  abandoned  and  the  transaction  is  in  sub- 
stance continuous  ;  (2)  that  chattels  may  be  in  the  thief  s  possession, 
though  left  on  the  owner's  land  (the  chattels  there  being  rabbits  which 
were  not  subject  of  property  until  killed).  The  expressions  "abandon  " 
and  "  intention  to  abandon,"  found  in  the  report  of  Townley's  case,  L. 
R.  1  C.  C.  R.  315,  though  not  inappropriate  when  read  with  reference  to 
the  special  facts  of  that  case,  are  liable  to  misconstruction  if  eini)loyed 
in  reference  to  such  a  case  as  that  before  us.  Where  chattels  after 
severance  are  left  on  the  property  of  the  true  owner,  no  matter  what 
the  wrong-doer's  intention  may  be,  he  cannot  escape  the  common-law 
doctrine,  if  his  possession  is  not  in  fact  continuous.  Continuity  of 
intention  is  not  the  equivalent  of  continuity  of  possession.  The 
transaction  here  was  not  continuous,  and  the  conviction  is  right. 

Holmes,  J.  I  think  that  the  solution  of  the  question  reserved  in 
this  case  depends  upon  whether  there  is  any  evidence  that  the  grass  or 
haj'  was  not  in  the  possession  of  the  true  owner  in  the  interval  between 
the  severance  and  removal.  When  the  grass  was  growing  it  belonged 
to  the  owner  of  the  land  ;  but  although  he  was  in  possession  of  it  as 
part  of  the  land,  he  was  not  in  possession  of  it  as  a  personal  chattel. 
It  first  became  capable  of  being  the  subject  of  larceny  when  it  was 
severed.  It  is,  I  think,  clear  that  where  it  is  severed  by  a  wrong-doer, 
and,  as  part  of  one  continuous  transaction,  it  is  carried  away  by  him, 
there  is  no  larceny.  In  such  a  case  it  has  never,  as  a  personal  chattel, 
been  in  the  possession,  actual  or  constructive,  of  the  true  owner.  It 
has  been  continuously  in  the  actual,  though  perhaps  not  always  in 
the  physical,  possession  of  the  wrong-doer.  In  the  case  before  us  the 
defendant,  having  cut  the  grass,  left  it  on  the  lands.  Beyond  the 
severance  he  did  no  act  of  any  kind  evidencing  actual  possession  on 
his  part,  and  for  two  days  the  owner  of  the  land  Rad,  it  seems  to  me, 
precisely  the  same  kind  of  possession  of  it  as  he  would  have  had  if  it 
had  been  cut  and  left  there  by  his  own  servant. 


596  REGINA   V.   FOLEY.  [CHAP.  VIII. 

There  cannot,  I  conceive,  be  constructive  as  distinguished  from 
actual  possession  bj^  a  wrong-doer ;  and  wlien  he  returned  at  the  end 
of  the  period  I  have  mentioned  he  would  be  guilty  of  larcen}',  unless 
he  was  in  actual  possession  in  the  interval.  There  is  not,  however,  a 
particle  of  evidence  of  such  actual  possession,  and  therefore  I  hold  the 
conviction  right.  This  conclusion  is  in  strict  accordance  with  the 
authorities  previous  to  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315, 
referred  to  by  Mr.  M0II03',  and  does  not,  I  think,  in  any  way  con- 
tiict  with  that  decision.  In  that  case  there  was  abundant  evidence 
that  tiie  whole  transaction  was  a  continuous  act,  or  in  other  words, 
that  the  wrong-doer  had  never  been  out  of  actual  possession  ;  and 
under  the  circumstances  the  fact,  upon  the  assumption  of  which  the 
case  was  stated,  that  the  poachers  had  no  intention  to  abandon  the 
wrongful  possession  of  the  rabbits  which  they  acquired,  but  placed 
them  in  the  ditch  as  a  place  of  deposit  till  they  could  conveniently 
remove  them,  was  decisive  in  the  prisoner's  favor.  I  consider,  how- 
ever, that  that  decision  has  no  application  to  the  present  case. 

Palles,  C.  B.  I  am  unable  to  concur  with  the  other  members  of  the 
court.  In  m}-  opinion  the  conviction  was  wrong,  and  ought  to  be 
quashed.  We  all  appear  to  agree  that  if  the  thing  taken  and  carried 
away  is  for  the  first  time  rendered  capable  of  being  stolen  by  the  act 
of  taking,  and  if  the  taking  and  carrying  awa}'  constitute  one  continu- 
ous act,  such  taking  and  carrying  away  is  not  theft  at  common  law. 
We  also  appear  to  agree  that  the  rule  applies  as  well  to  the  grass  in 
question  here  as  to  the  rabbits  in  The  Queen  v.  Townley,  L.  R.  1  C.  C. 
R.  315,  and  that  the  reason  of  the  rule  is  not  that  the  thing  taken  was 
not  at  the  time  of  the  taking  the  property  of  the  prosecutor,  but  be- 
cause, at  the  moment  at  which  it  became  that  class  of  propert}'  which 
can  be  the  subject  of  larcen}'  —  i.  e.  &  personal  chattel  —  it  was  in 
the  possession,  not  of  the  true  owner,  but  of  the  trespasser.  On  the 
other  hand,  I  admit  that  although  the  possession  of  the  chattel  was  in 
the  trespasser  by  the  act  of  taking,  yet,  if  such  possession  ceased  in 
fact,  b}'  its  abandonment  by  the  trespasser,  the  possession  upon  such 
cesser  became  constructively  that  of  the  true  owner ;  and  that  if, 
during  the  continuance  of  such  constructive  possession,  the  trespasser 
again  took  possession,  animo  fiirandi,  such  last-mentioned  taking 
would  be  larceny. 

The  question,  then,  for  decision  is,  whether  on  the  facts  of  the  present 
case,  and  notwithstanding  the  finding  of  the  jury  on  the  question  left 
to  them,  we  can  say,  as  a  matter  of  law,  tliat  the  cutting  and  carrying 
away  did  not  constitute  one  continuous  act ;  oi',  in  other  words,  that 
the  possession  of  the  prisoner  of  the  severed  grass  had  ceased  prior  to 
its  removal  on  the  13th  August.  As  to  what  constitutes  a  cesser  of 
possession,  it  seems  clear  that  it  cannot  be  said  that  it  necessaril}-  takes 
place  the  moment  the  trespasser  abandons  physical  control  over  the 
chattel.  In  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  the  rabbits 
were  lying  in  a  ditch  for  three  hours  during  the  absence  of  the  poachers, 


SECT.  IL]  REGINA   V.   FOLEY.  597 

and  were  consequently  for  that  period  out  of  their  physical  power  and 
control ;  yet  it  was  held  that  the  question  of  the  cesser  or  abandon- 
ment of  the  tres[)asser's  possession  was  one  not  of  law,  but  of  fact ; 
and  that  a  verdict  negativing — as  the  jury  have  here  negatived  — 
intention  to  abandon  amounted  to  not  guilty.  The  decision  there, 
therefore,  involved  the  determination  that  during  the  entire  period 
whilst  the  rabbits  lay  in  the  ditch,  they  were  in  law  in  the  possession, 
not  of  the  true  owner,  but  of  the  absent  poachers,  and  were  so  by 
reason  of  the  absence  in  the  minds  of  the  poachers  of  intention  to 
abandon. 

The  same  conclusion  was  arrived  at  in  Reg.  v.  Fetch,  14  Cox  C.  C. 
116,  in  which  the  period  during  which  the  dead  rabbits  were  hidden  in 
a  hole  in  the  earth  must  have  been  nearly  an  entire  da}-,  viz.  from  half- 
past  eleven  ou  one  morning  to  early  on  the  following  morning.  I  am 
not  quite  sure  that  I  understand  the  exact  meaning  which  Mr.  Justice 
Gibson  attaches  to  the  word  "effective"  when  he  conceives  it  to  be 
a  principle  of  the  common  law  that  when  the  wrong-doer's  actual  and 
effective  possession  ceases,  he  cannot  be  deemed  to  be  in  constructive 
possession.  If  by  "effective"  he  means  something  different  from 
"actual"  and  for  this  reason  distinguishes  the  present  case  from  The 
Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315,  and  The  Queen  v.  Fetch,  14 
Cox  C.  C.  116,  I  am  unable  to  follow  his  reasoning.  If  it  can  be  said, 
as  a  matter  of  law,  that  the  possession  of  the  severed  grass  by  the 
prisoner  in  the  present  case,  although  actual,  was  not  "  effective"  so, 
too,  should  have  been  held  the  possession  for  a  daj'  of  the  trapper  in 
The  Queen  v  Fetch,  14  Cox  C.  C.  116,  and  that  for  three  hours  of  the 
poachers  in  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315.  On  the 
other  hand,  if  by  "  effective"  he  means  no  more  than  is  involved  in 
"  actual,"  then,  although  I  agree  in  his  view,  I  cannot  distinguish  the 
present  case  from  Townley's  case,  L.  R.  1  C.  C.  R.  315,  and  Fetch's 
case,  14  Cox  C.  C.  116.  On  that  supposition  it  would  not  be  sufficient 
that  the  facts  should  be  such  that  the  jury  might  have  found  that  the 
actual  possession  of  the  prisoner  had  ceased.  No  doubt  they  might, 
but  they  have  not  done  so.  They  have  found  the  contrary.  Fetch's 
case,  14  Cox  C.  C.  116  is  a  clear  authority  that  if  the  period  which 
elapsed  between  the  cutting  the  grass  and  its  ultimate  carrying  away 
did  not  amount  to  more  than  a  day,  the  prisoner,  in  the  present  case 
(having  regard  to  the  finding)  would  not  have  been  guilty.  But  if  the 
exact  length  of  the  interval  be  material,  we,  as  distinct  from  the  jurors, 
cannot  determine  the  exact  time,  measured  in  hours  or  in  days,  the 
existence  of  which  will  make  that  larcen}-,  which  would  not  have  been 
so  had  the  interval  been  something  less.  We  cannot  say  that  if  the 
interval  be  twenty-three  hours  it  may  not  be,  but  that  if  it  be  in- 
creased to  twenty-five  hours,  or  three  days,  it  necessarily  must  be 
larcenj'. 

The  question  involved  is,  as  decided  in  Townley's  case,  L.  R.  1  C. 
C.  R.  315,  one  of  intention.     Such  a  question  is  usually  exclusively  foi 


598  EEGINA   V.   FOLEY.  [CHAP.  VIII. 

a  jury.  If  time  be,  as  admittedly  it  is,  material  in  determining  this 
intention,  the  only  periods  between  which  the  common  law  can  recog- 
nize a  distinction  are  between  those  which  are  and  which  are  not 
reasonable.  This  is  the  view  taken  by  Mr.  Justice  Stephen  in  his 
Digest  (4th  ed.  Art.  296).  "  It  seems,"  he  says,  "  that  the  taking  and 
carrying  away  are  to  be  deemed  to  be  continuous  if  the  intention  to 
carry  away  after  a  reasonable  time  exists  at  the  time  of  the  taking." 
If  this  be,  as  I  think  it  is,  the  true  rule,  the  jurors  alone  can,  in  a 
case  such  as  the  present,  determine  within  which  class  the  period  of 
time  in  question  here  must  range ;  and  the  question  of  reasonable 
time  not  having  been  left  to  the  jury  or  found,  considerations  arising 
from  the  length  of  the  interval  cannot,  as  it  seems  to  me,  be  relied 
upon.  If,  therefore,  the  conviction,  under  the  circumstances  proved, 
be  right,  so  must  it  have  been  had  the  interval  been  three  hours,  or 
one  da}',  instead  of  three  days ;  and  unless  there  be  some  other  dis- 
tinction between  this  and  Townley's  case,  L.  R.  1  C.  C.  R.  315,  and 
Fetch's  case,  14  Cox  C.  C.  116,  the  present  case  would  appear  to  be 
ruled  by  them.  Is  there,  then,  an}'  distinction?  I  think  not.  It  is 
said  that  here  there  is  an  absence  of  intention,  by  which  I  suppose 
is  meant  absence  of  affirmative  evidence  of  intention  in  the  prisoner 
to  remain  in  possession.  Even  were  this  so  it  would  not  justif}'  the 
judge  in  withdrawing  from  the  jury  the  prisoner's  intention;  for  the 
material  thing  is,  not  the  absence  of  intention  to  retain  possession, 
but  the  presence  of  affirmative  intention  to  abandon.  The  mere  act 
of  cutting  was  some  evidence  that  the  prisoner  cut  the  grass  for  him- 
self, and  intended  to  use  it.  He  told  the  police  constable  that  he  (the 
prisoner)  might  as  well  have  it  as  the  landlord.  This  declaration, 
though  made  on  the  11th,  is  some  evidence  of  his  intention  at  the 
time  of  the  original  cutting,  on  the  10th.  It  was  competent,  too,  to 
tlie  jury  to  have  regard  to  the  character  of  the  act  done,  and  to  find 
that  the  reason  the  prisoner  refrained  for  three  days  from  carrying  it 
away  was  that  it  might  become  dr}-,  and  that  he  might  carry  it  away  as 
hay. 

Mr.  Molloy,  as  I  understand,  contests  the  proposition  laid  down  by 
Mr.  Justice  Stephen,  to  which  I  have  already  referred,  and  for  that 
purpose  relies  mainly  upon  1  Hale  P.  C,  p.  510,  and  Lee  v.  Risdon,  7 
Taunt.  191.  In  the  first  it  is  said  :  "  If  a  man  come  to  steal  trees,  or 
the  lead  of  a  church  or  house,  and  sever  it,  and  after  about  an  hour's 
time  or  so  come  and  fetch  it  away,  this  hath  been  held  felon}-,  because 
the  act  is  not  continuated  but  interpolated,  and  so  it  was  agreed  by  the 
Court  of  King's  Bench,  9th  Car.  II.,  upon  an  indictment  for  stealing  the 
lead  of  Westminster  Abbey,"  This  passage  may  mean  no  more  than 
that  such  an  act  is  capable  of  being  a  felony,  if  so  found  by  the  jury  ; 
and  that  the  jury  should  so  find,  if  they  were  of  opinion  that  the  act 
was  not  continuated  but  interpolated.  In  Lee  v.  Risdon,  7  Taunt.  191, 
the  distinction  drawn  by  Gibbs,  C.  J.,  is  as  to  that  of  which  felony  can, 
and  that  of  which  it  cannot,  be  committed.     "Felony,"  he  says,  "  can- 


SECT.  II.J  REGINA   V.   FOLEY.  599 

not  be  committed  of  those  things  "  {i.  e.  things  attached  to  the  freehold), 
"  but  if  the  thief  severs  the  property,  and  instantly  carries  it  off,  it  is 
no  felon}'  at  common  law.  If,  indeed,  he  lets  it  remain  after  it  is 
severed,  any  time,  then  the  removal  of  it  becomes  a  felony."  The  true 
meaning,  however,  of  these  passages  was  determined  hy  The  Queen  v. 
Townley,  L.  R.  1  C.  C.  R.  315.  Martin,  B.,  explains  them  in  these 
words:  "Those  statements  may  be  perfectly  correct,  and  ought,  per- 
haps, to  be  followed,  in  cases  exactly  similar  in  their  facts,  where  there 
has  been  an  actual  abandonment  of  possession  of  the  things  taken ; 
but  here  it  is  expressly  found  that  there  was  no  abandonment ;  and 
where  the  act  is  merel}^  interrupted,  I  think  it  is  more  reasonable  to 
hold  that  there  is  no  larceny'."  This  judgment  is  valuable  as  showing 
two  things:  (1)  That  the  authorities  relied  upon  b}-  Mr.  Molloy  are 
applicable  only  where  an  actual  abandonment  of  the  thing  taken  has 
been  found  or  admitted ;  (2)  That  the  question  of  abandonment,  in 
fact,  depends  upon  intention  to  abandon.  There,  the  fact  admitted 
was  that  the  poachers  had  no  intention  to  abandon  ;  and  that  is  treated 
by  Martin,  B.,  as  an  express  finding  that  there  was  no  abandonment 
in  fact.  Bramwell,  B.,  also  treats  the  case  as  depending  upon  inten- 
tion. "  I  think  our  decision,"  he  says,  "  is  consistent  with  the  pas- 
sage cited  from  Hale,  and  the  dictum  of  Gibbs,  C.  J.,  referred  to,  which 
appear  to  me  to  be  quite  correct.  If  a  man  were  unlawfull}'  to  dig 
his  neighbor's  potatoes,  and  from  being  disturbed  in  his  work,  or  any 
other  cause,  were  to  abandon  them  in  the  place  where  he  had  dug  them, 
and  were  afterwards,  with  a  fresh  intention,  to  come  back  and  take 
them  awa}',  I  think  the  case  would  be  the  same  as  if,  during  this  interval 
of  time,  the  potatoes  had  been  locked  in  a  cupboard  by  the  true  owner." 
Byles,  J.,  in  the  same  way  treats  the  fact  that  the  poachers  had  no 
intention  to  abandon  as  involving  that  their  possession  never  had  been 
abandoned  in  fact.  Blackburn,  J.,  says:  "There  is  the  fact  that  the 
rabbits,  after  being  killed,  were  left  hidden  in  a  ditch  upon  the  land  for 
nearly  three  hours.  I  should  myself  have  thought  that  that  made  no 
difference  in  the  case."  As  to  the  passages  cited  from  Lord  Hale,  and 
the  dictum  of  Chief  Justice  Gibbs,  he  adds:  "If  we  are  to  under- 
stand those  passages  in  the  sense  put  upon  them  by  my  brother  Bram- 
well, as  applying  only  to  a  case  in  which  the  wrong-doer  has  abandoned 
and  lost  all  property  and  possession  in  the  things  in  question,  I  have  no 
quarrel  with  them,  and  the}'  do  not  apply  to  the  present  case.  But  if 
those  passages  mean  that  the  mere  cessation  of  physical  possession  is 
sufficient  to  make  the  subsequent  act  of  removal  larceny,  then  they  do 
apply  to  the  present  case,  and  in  that  case,  great  as  is  my  respect  for 
Lord  Hale,  I  cannot  follow  him." 

The  clear  answer,  then,  to  the  argument  of  Mr.  Molloy,  appears  to 
me  to  be  that  if  the  passages  he  has  relied  upon  are  to  be  read  in  the 
sense  for  which  he  contends,  they  are  inconsistent  with,  and  have  been 
overruled  by  The  Queen  v.  Townley,  L.  R.  1  C.  C.  R.  315. 

Upon  the  whole,  I  am  of  opinion  that  the  decision  in  The   Queen 


600  COMMONWEALTH    V.    STEIMLING.  [CHAP.  VIII. 

V.  Townley,  L.  R.  1  C.  C.  R.  315,  as  applied  to  the  present  ease,  in- 
volves the  following  propositions  :  — 

1.  That  the  mere  leaving  by  the  prisoner  of  the  field  in  which  he  cut 
the  grass  was  not,  per  se,  and  irrespective  of  every  other  consideration, 
sufficient  to  make  liis  subsequent  act  of  removal  larceny. 

2.  That  the  prisoner's  omission  for  three  days  to  take  away  the  hay 
was  evidence  from  which  a  jury  might,  if  they  thought  fit,  have  found  an 
abandonment  by  the  prisoner  of  that  possession  which  he  had  acquired 
by  the  unlawful  act  of  severance. 

3.  That  such  question  of  abandonment  involved  the  intention  of  the 
prisoner  and  his  object  in  leaving  the  grass  lying  upon  the  field  for 
three  days. 

4.  That  such  abandonment  was  essential  to  a  valid  conviction  ;  and 
that,  in  the  present  case,  in  which  instead  of  being  found  it  has  been 
negatived,  the  conviction  cannot  be  sustained.  See  Reg.  v.  Barry,  2 
Cox  C.  C.  294. 


COMMONWEALTH   v.   STEIMLING. 
Supreme  Court  of  Pennsylvania.     1893. 

[Reported  27  Atlantic  Reporter,  297.] 

Williams,  J.^  It  appeared  on  the  trial  that  Bower,  the  prosecutor, 
was  the  owner  of  a  farm  which  was  crossed  bj-  Mahanoy  Creek.  Some 
distance  up  the  stream  coal  mines  were  in  operation,  and  had  been  for 
many  j-ears.  The  culm  and  waste  from  the  mines  and  breaker,  which 
had  been  thrown  into,  or  piled  upon  the  bank  of,  the  creek,  had  been 
carried  down  the  stream  by  the  current  and  the  floods,  and  deposited 
in  the  channel  and  along  the  shores  in  considerable  quantities.  This 
material,  having  been  abandoned  by  its  original  owners,  belonged  to 
him  on  whose  land  the  water  left  it.  The  water,  dropping  the  heavy 
pieces  first,  and  carrying  the  smaller  particles  and  dust  along  in  tlie 
current,  served  as  a  screen  ;  and,  as  the  result  of  this  process,  consid- 
erable quantities  of  coal  suitable  for  burning  were  lodged  along  the 
channel  and  the  banks  of  the  stream,  throughout  its  course  over  the 
prosecutor's  farm.  The  defendant,  descending  the  stream  with  a  flat- 
boat,  entered  upon  the  lands  of  Bower,  and  began  to  gather  coal  from 
the  surface.  He  was  provided  with  a  scoop  or  shovel  made  of  strong 
wire  or  iron  rods,  with  which  he  gathered  up  the  coal.  The  sand  and 
gravel  passed  through  the  meshes  of  the  scoop,  leaving  the  pieces  of 
coal  within  it.  When  the  gravel  was  all  sifted  out,  the  cleaned  coal 
was  emptied  upon  the  flatboat.  This  process  was  continued  until  a 
boat-load  was  obtained.  The  boat  was  then  towed  or  pushed  to  some 
bins  on  the  shore  opposite  to  Bower's  house,  and  the  coal  was  trans- 

1  Part  only  of  the  opinion  is  given. 


SECT.  11.]  COMMONWEALTH  V.    STEIMLING.  601 

ferred  from  the  boat  to  the  bins.     This  was  repeated  until  from  eight 
to  twelve  tons  of  coal  had  been  gathered,  cleaned,  deposited  on  the 
boat,  transported  to  the  bins,  and  unloaded.     This  coal  was  afterwaids 
delivered  to   purchasers,  or    taken    for   consumption,   from    the    bins. 
Here  was  a  taking  with  intent  to  carry  away  and  convert,  a  carrying 
away,  and  an  actual  conversion,  which,  the  commonwealth  held,  sus- 
tained   the    indictment    for    larceny.       The    learned    judge,    however, 
instructed  the  jury  that  the  process    of  collecting,  cleaning,  loading 
upon  the  flatboat,  transporting  to  the  bins,  and  unloading  the  coal  into 
them,  must  be  regarded  as  one  continuous  act,  like  the  act  of  him  who 
tears  a  piece  of  lead  from  a  building  and  carries  it  off,  or  who,  passing 
an  orchard,  plucks  fruit  and  takes  it  away,  and  that  the  defendant  was 
therefore  a  trespasser  only.     The  distinction  in  the  mind  of  the  learned 
judge  was  that  between  real  and  personal  estate.     The  coal  lying  upon 
the'surface  he  held  to  be  real  estate.     The  lifting  it  up  in  the  shovel 
was,  on  this  theory,  a  severance,  which  forcibly  changed  its  character, 
and  made  it  personal.     The  loading  into  the  flatboat,  the  transporta- 
tion to  the  bins,  and  unloading  of  the  boat,  all  of  which  acts  were 
done  within  the  lines  of  the  prosecutor's  la;id,  and  occupied  hours  of 
time  for  each  boat-load,  were  so  connected  with  the  severance  as  to 
make  but  a  single  act.     For  this  reason  he  held  that  the  defendant  was 
guilty  of  a  trespass  onl}-.     The  common  law  did  distinguish  between 
things  that  are  connected  with  or  savor  of  the  real  estate  and  those 
that  are  personal  goods.     An  apple  growing  upon   a   tree   was   con- 
nected with  the  land  by  means  of  the  tree  that  bore  it,  and  so  held  to 
partake  of  the  nature  of  the  land,  and  to  be  real  estate.     One  who 
plucked  it  from  the  tree,  and  at  once  ate  or  carried  it  away,  was  there- 
fore a   trespasser ;    but  if  he  laid  it  down,  and  afterwards  carried  it 
away,   so  that  the  taking  and  the  asportation  were  not  one  and  the 
same  act,  then,  if  the  carrying  away  was  done  animo  furancli,  the  ele- 
ments of  larceny  were  present.     Blackstone  tells  us,  in  volume  4,  p. 
233,  of  the  Commentaries,  that  larceny  cannot  be  committed  of  things 
that  savor  of  the  realty,  because  of  "  subtility  in  the  legal  notions  of 
our  ancestors."     He  then  explains  the  subtile  distinction  as  follows  : 
"  These  things  [things  that  savor  of  the  realty]  were  parcel  of  the 
real  estate,  and  therefore,  while  they  continued  so,  could  not  by  any 
possibility  be  the  subject  of  theft,  being  absolutely  fixed  and  immov- 
able ;  and  if  they  were  severed  by  violence,  so  as  to  be  changed  into 
movables,  and  at  the  same  time,  by  one  and  the  same  continued  act, 
carried  off  by  the  person  who  severed  them,  they  could  never  be  said 
to  be  taken   from   their    proprietor   in   their  newly  acquired  state   of 
mobility."     But  he  explains  that  if  the  act  of  severance  and   that  of 
carrying  away  be  separated,  so  that  they  do  not  constitute  "one  and 
the  same  continued  act,"  the  subtile  distinction  between  personal  goods 
and  those  that  savor  of  the  real  estate  ceases  to  protect  the  wrong-doer 
from  a  criminal  prosecution,  and  a  charge  of  larceny  can  be  sustained. 
The  question  whether  this  coal,  lying  loose  upon  the  surface,  like  other 


602  COMMONWEALTH   V.   STEIMLING.  [CHAP.  VIII. 

drift  of  the  stream,  was  real  or  personal  estate,  does  not  seem  to  have 
been  raised  in  the  court  below,  and  it  is  not  before  us.  The  real  ques- 
tion presented  is  whether  this  case,  upon  its  facts,  is  one  for  the  appli- 
cation of  the  common-law  rule.  Have  we  here  a  severance  and  an 
asportation  that  constitute  "  one  and  the  same  continuous  act?"  If 
the  picking  of  the  coal  from  the  surface  be  treated  as  an  act  of  sever- 
ance, we  have  next  the  act  of  cleaning  and  sifting ;  then  the  deposit 
of  tlie  cleaned  coal  upon  the  flatboat,  little  by  little ;  then  the  trans- 
portation of  the  boat-load  to  the  bins  ;  then  the  process  of  shovelling 
the  coal  from  the  boat  into  the  bins.  The  acts,  occupying  consider- 
able time  for  each  boat-load,  were  all  done  within  the  inclosures  of  the 
prosecutor.  It  is  as  though  one  should  come  with  team  and  farm- 
wagon  into  his  neighbor's  corn-field,  and  pluck  the  ears,  load  them 
into  the  wagon,  and,  when  the  wagon  would  hold  no  more,  draw  the 
corn  away  to  his  own  corn-house,  and  then  return  again,  and  continue 
the  process  of  harvesting  in  the  same  manner  until  he  had  transferred 
his  neighbor's  crop  to  his  own  cribs.  If  such  acts  were  done  under  a 
bona  fide  claim  of  title  to  the  crop,  they  would  not  amount  to  larceny, 
but,  if  done  animo  furandi,  all  the  elements  of  larceny  would  be  pres- 
ent. In  the  case  before  us,  it  is  conceded  that  the  coal  belonged  to 
Bower,  and  was  in  his  possession  as  part  of  his  real  estate.  The 
defendant  entered  his  lands  for  the  purpose  of  collecting  coal,  and 
carrying  it  away.  He  makes  no  bona  fide  claim  of  title  ;  no  offer  to 
purchase  ;  sets  up  no  license  ;  but  rests  on  the  proposition  that,  like 
the  man  who  plucks  an  apple  from  a  tree,  and  goes  his  way,  he  is 
liable  only  as  a  trespasser.  If  this  be  true,  he  could  gather  the  coal 
from  Bower's  land  as  often  as  the  stream  made  a  sufficient  deposit  to 
justify  the  expenditure  of  time  necessary  to  gather,  clean,  transport, 
and  put  it  in  bins.  Upon  the  same  principle,  he  might  gather  all  the 
crops  growing  on  Bower's  farm,  as  they  matured,  and,  by  hauling  each 
load  away  when  it  was  made  up,  defend  against  the  charge  of  larceny 
on  the  ground  that  the  gathering  from  the  tree,  the  stalk,  or  the  hill, 
the  loading  into  wagons,  and  the  carrying  of  the  loads  away,  though 
occupying  hours  for  each  load,  and  many  days  for  the  crop,  was  ''one 
and  the  same  continuous  act  "  of  trespass.  We  cannot  agree  to  such  an 
extension  of  the  common-law  rule,  but  are  of  the  opinion  that  this  case 
should  have  gone  to  the  jury,  on  the  existence  of  the  animo  furandi. 


SECT.  II.]  KEGINA    V.    RILEY.  603 


REGINA   V.   RILEY. 
Crown  Case  Reserved.     1853. 

[Reported  6  Cox  C.  C.  88;  Dearsly,  C.  C.  149.] 

At  the  General  Quarter  Sessions  of  the  Peace  for  the  county  of 
Durham,  held  at  the  city  of  Durham,  before  Rowland  Burdon,  Esq., 
Chairman,  on  the  18th  day  of  October,  in  the  year  of  our  Lord  1852, 
the  prisoner  was  indicted  for  having,  on  the  5th  day  of  October,  1852, 
stolen  a  lamb,  the  property  of  John  Burnside.  The  prisoner  pleaded 
not  guilty.  On  the  trial  it  was  proved  that  on  Friday,  the  1st  day  of 
October,  in  the  year  of  our  Lord  1852,  John  Burnside,  the  prosecutor, 
put  ten  white-faced  lambs  into  a  field  in  the  occupation  of  John  Clarke, 
situated  near  to  the  town  of  Darlington.  On  Monday,  the  4th  day  of 
October,  the  prisoner  went  with  a  flock  of  twenty-nine  black-faced 
lambs  to  John  Clarke,  and  asked  if  he  might  put  them  into  Clarke's 
field  for  a  night's  keep,  and  upon  Clarke's  agreeing  to  allow  him  to  do  so 
for  one  penny  per  head,  the  prisoner  put  his  twenty-nine  lambs  into 
the  same  field  with  the  prosecutor's  lambs.  At  half-past  seven  o'clock 
in  the  morning  of  Tuesday,  the  5th  day  of  October,  the  prosecutor  went 
to  Clarke's  field,  and  in  counting  his  lambs  he  missed  one,  and  the  pris- 
oner's lambs  were  gone  from  the  field  also.  Between  eight  and  nine 
o'clock  in  the  morning  of  the  same  day,  the  prisoner  came  to  the  farm 
of  John  Calvert,  at  Middleton  St.  George,  six  miles  east  from  Darling- 
ton, and  asked  him  to  buy  twenty-nine  lambs.  Calvert  agreed  to  do 
so,  and  to  give  8s.  apiece  for  them.  Calvert  then  proceeded  to  count 
the  lambs  and  informed  the  prisoner  that  there  were  thirty  instead  of 
twenty-nine  in  the  flock,  and  pointed  out  to  him  a  white-faced  lamb ; 
upon  which  the  prisoner  said,  "  If  you  object  to  take  thirty,  I  will 
draw  one."  Calvert,  however,  bought  the  whole  and  paid  the  prisoner 
£12  for  them.  One  of  the  lambs  sold  to  Calvert  was  identified  by  the 
prosecutor  as  his  property  and  as  the  lamb  missed  by  him  from  Clarke's 
field.  It  was  a  half-bred,  white-faced  lamb,  marked  with  the  letter 
"  T,"  and  similar  to  the  other  nine  of  the  prosecutor's  lambs.  The 
twenty-nine  lambs  belonging  to  the  prisoner  were  black-faced  lambs. 
On  the  5th  of  October,  in  the  afternoon,  the  prisoner  stated  to  two  of  the 
witnesses  that  he  never  had  put  his  lambs  into  Clarke's  field,  and  had 
sold  them  on  the  previous  afternoon,  for  £11  12s.,  to  a  person  on  the 
Barnard  Castle  road,  which  road  leads  west  from  Darlington. 

There  was  evidence  in  the  case  to  show  that  the  prisoner  must  have 
taken  the  lambs  from  Clarke's  field  early  in  the  morning,  which  was 
thick  and  rainy. 

It  was  argued  by  the  counsel  for  the  prisoner,  in  his  address  to  the 
jury,  that  the  facts  showed  that  the  original  taking  from  Clarke's  field 
was  by  mistake  ;  and  if  the  jury  were  of  that  opinion,  then,  as  the 
original  taking  was  not  done  animo  furandi,  the  subsequent  appro- 
priation   would   not   make   it   a   larceny,  and   the   prisoner   must   be 


804  REGINA   V.    RILEY.  [CHAP.  VIII. 

acquitted.  The  chairman,  in  summing  up,  told  the  jury  that  though 
they  might  be  of  opinion  that  the  prisoner  did  not  know  that  the  lamb 
was  in  his  flocli  until  it  was  pointed  out  to  him  by  Calvert,  he  should 
rule  that  in  point  of  law  the  taking  occurred  when  it  was  so  pointed 
out  to  the  prisoner  and  sold  by  him  to  Calvert,  and  not  at  the  time  of 
leaving  the  field.  The  jury  returned  the  following  verdict :  '•'  The  jury 
say  that  at  the  time  of  leaving  the  field  the  prisoner  did  not  know  that 
the  lamb  was  in  his  flock,  and  that  he  was  guilty  of  felony  at  the  time 
it  was  pointed  out  to  him." 

The  prisoner  was  then  sentenced  to  six  months'  hard  labor  in  the 
house  of  correction  at  Durham  ;  and  being  unable  to  find  bail,  was 
thereupon  committed  to  prison  until  the  opinion  of  this  court  could  be 
taken  upon  the  question  whether  Charles  Riley  was  properly  convicted 
of  larceny.^ 

Pollock,  C.  B.  "We  are  all  of  opinion  that  the  conviction  is  right. 
The  case  is  distinguishable  from  those  cited.  R.  v.  Thristle  decides 
only  that  if  a  man  once  gets  into  rightful  possession,  he  cannot  by  a 
subsequent  fraudulent  appropriation  convert  it  into  a  felony.  So  in 
R,  V.  Thurborn,  in  the  elaborate  judgment  delivered  by  my  brother 
Parke  on  behalf  of  the  court,  of  which  I  was  a  member,  the  same  rule 
is  laid  down.  It  is  there  said  that  the  mere  taking  up  of  a  lost 
chattel  to  look  at  it  would  not  be  a  taking  possession  of  it ;  and  no 
doubt  that  may  be  done  without  violating  any  social  duty.  A  man 
may  take  up  a  lost  chattel  and  carry  it  home,  with  the  proper  object  of 
endeavoring  to  find  the  owner ;  and  then  afterwards,  if  he  yields  to 
the  temptation  of  appropriating  it  to  his  own  use,  he  is  not  guilty  of 
felony.  In  Leigh's  case,  also,  the  original  taking  was  rightful,  but 
here  the  original  taking  was  wrongful.  I  am  not  desirous  of  calling  in 
aid  the  technicality  of  a  continuing  trespass  ;  and  I  think  this  case 
may  be  decided  upon  the  ground  either  that  there  was  no  taking  at  all 
by  the  prisoner  in  the  first  instance  or  a  wrongful  taking,  and  in  either 
case,  as  soon  as  he  appropriates  the  property,  the  evidence  of  felony  is 
complete. 

Parke,  B.  I  think  that  this  case  may  be  disposed  of  on  a  short 
ground.  The  original  taking  was  not  lawful,  but  a  trespass,  upon 
which  an  action  in  that  form  might  have  been  founded  ;  but  it  was  not 
felony,  because  there  was  no  intention  to  appropriate.  There  was, 
however,  a  continuing  trespass  up  to  the  time  of  appropriation,  and  at 
that  time,  therefore,  the  felony  was  committed.  Where  goods  are 
carried  from  one  county  to  another  they  may  be  laid  as  taken  in  the 
second  county,  and  the  difference  between  this  and  Leigh's  case,  as 
well  as  the  others  cited,  is  that  the  original  taking  was  no  trespass. 
It  was  by  the  implied  license  of  the  owner,  and  the  same  thing  as  if  he 
had  been  entrusted  by  the  prosecutor  with  the  possession  of  the  goods. 

Williams,  Talfourd,  and  Crompton,  JJ.,  concurred. 

Conviction  affirmed. 
*  Argument  of  counsel  is  omitted. 


SECT.  II.]  STATE   V.   COOMBS.  605 

STATE  V.   COOMBS. 

Supreme  Judicial  Court  of  Maine.     1868. 

[Reported  55  Maine,  477.] 

DiCKERSON,  J.^  Exceptions.  The  prisoner  was  indicted  for  the 
larcen}'  of  a  horse,  sleigh,  and  buffalo  robes.  The  jiUT  were  instructed 
that,  if  the  prisoner  obtained  possession  of  the  team  by  falsely  and 
fraudulently  pretending  that  he  wanted  it  to  drive  to  a  certain  place, 
and  to  be  gone  a  specified  time,  when  in  fact  he  did  not  intend  to  go 
to  such  place,  but  to  a  more  distant  one,  and  to  be  absent  a  longer 
time,  without  intending  at  the  time  to  steal  the  propert}-,  the  team  was 
not  lawfully'  in  his  possession,  and  that  a  subsequent  conversion  of  it 
to  his  own  use,  with  a  felonious  intent  while  thus  using  it,  would  be 
larceny. 

It  is  well  settled  that  where  one  comes  lawfully  into  possession  of 
the  goods  of  another,  with  his  consent,  a  subsequent  felonious  conver- 
sion of  them  to  his  own  use,  without  the  owner's  consent,  does  not 
constitute  larceny,  because  the  felonious  intent  is  wanting  at  the  time 
of  the  taking. 

But  how  is  it  when  the  taking  is  fraudulent  or  tortious,  and  the 
property  is  subsequentl}'  converted  to  the  use  of  the  taker  with  a 
felonious  intent?  Suppose  one  takes  his  neighbor's  horse  from  the 
stable,  without  consent,  to  ride  him  to  a  neighboring  town,  with  the 
intention  to  return  him,  but  subsequently  sells  him  and  converts 
the  money  to  his  own  use,  without  his  neighbor's  consent,  is  he  a  mere 
trespasser,  or  is  he  guilty  of  larceny?  In  other  words,  must  the 
felonious  intent  exist  at  the  time  of  the  original  taking,  when  that  is 
fraudulent  or  tortious,   to  constitute  larceny? 

When  property-  is  thus  obtained,  the  taking  or  trespass  is  continu- 
ous. The  wrong-doer  holds  it  all  the  while  without  right,  and  against 
the  right  and  without  the  consent  of  the  owner.  If  at  this  point  no 
other  element  is  added,  there  is  no  larceny.  But  if  to  such  taking 
there  be  subsequently  superadded  a  felonious  intent,  that  is,  an  intent 
to  deprive  the  owner  of  his  property  permanently  without  color  of 
right,  or  excuse,  and  to  make  it  the  property  of  the  taker  without  the 
owner's  consent,  the  crime  of  larceny  is  complete.  "  A  felonious 
intent,"  observes  Baron  Parke,  in  Regina  v.  Holloway,  2  C.  &  K.,  942, 
"means  to  deprive  the  owner,  not  temporarih',  but  permanently  of 
his  own  property,  without  color  of  right  or  excuse  for  the  act,  and  to 
convert  it  to  the  taker's  use  without  the  consent  of  the  owner." 

The  case  of  Regina  v.  Steer,  2  C.  &  K.,  988,  is  in  harmony  with 
this  doctrine.  The  prosecutor  let  the  prisoner  have  his  horse  to  sell  for 
him  ;  he  did  not  sell  it,  but  put  it  at  a  liver}'  stable.  The  prosecutor 
directed  the  keeper  of  the  stable  not  to  give  up  the  horse  to  the  prisoner, 

^  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


606  STATE   V.    COOMBS.  [CHAP.  VIII. 

and  told  the  prisoner  he  must  not  have  the  horse  again ;  to  which  the 
prisoner  replied,  "Well."  The  prisoner  got  possession  of  the  horse 
by  telling  a  false  story  to  the  servant  of  the  keeper  of  the  stable,  and 
made  off  with  him.  The  case  was  reserved,  and  the  court  held  the 
prisoner  guilty  of  larcenj-.     Commonwealth  v.  White,  11  Cush.  483. 

In  the  ease  at  bar,  the  prisoner  obtained  possession  of  the  property 
by  fraud.  This  negatives  the  idea  of  a  contract,  or  that  the  possession 
of  the  prisoner  was  a  lawful  one  when  he  sold  the  horse.  He  was  not 
the  bailee  of  the  owner,  but  was  a  wrong-doer  from  the  beginning ;  and 
the  owner  had  a  right  to  reclaim  his  propert}'  at  an}'  time.  It  has  been 
decided  that  when  a  person  hires  a  horse  to  go  to  a  certain  place,  and 
goes  beyond  that  place,  the  subsequent  act  is  tortious  and  that  trover 
may  be  maintained,  on  the  ground  of  a  wrongful  taking  and  con- 
version.    Morton  v.  Gloster,  46  Maine,  520. 

In  contemplation  of  law,  the  wrongful  act  was  continuous,  and 
when  to  that  act  the  prisoner  subsequently  added  the  felonious  intent, 
that  is,  the  purpose  to  deprive  the  owner  of  his  property  permanently-, 
without  color  of  right  or  excuse,  and  to  convert  it  to  his  own  use  with- 
out the  consent  of  the  owner,  the  larceny  became  complete  from  that 
moment.  The  color  of  consent  to  the  possession  obtained  by  fraud, 
does  not  change  the  character  of  the  offence  from  larceny  to  trespass 
or  other  wrongful  act.  In  such  case  it  is  not  necessary  that  the  feloni- 
ous intent  should  exist  at  the  time  of  the  original  taking  to  constitute 
larceny,  the  wrongful  taking  being  all  the  while  continuous. 

It  is  to  be  observed  that  this  principle  does  not  apply  in  cases  where 
the  owner  parted  with  his  propert}-,  and  not  the  possession  merely,  as 
in  the  case  of  a  sale  procured  by  fraud  or  false  pretences.  In  such 
instances  there  is  no  larceny,  however  gross  the  fraud  by  which  the 
property  was  obtained.  Mawre}'  v.  Walsh,  8  Cowen,  238;  Ross  v. 
The  People,  5  Hill,  294.  "It  is  difficult  to  distinguish  such  a  case 
from  larceny,"  remarks  Mr.  Justice  Cowen,  in  Ross  v.  The  People  ; 
"  and  were  the  question  res  nova  in  this  court,  I,  for  one,  would  follow 
the  decision  in  Rex  v.  Campbell,  1  Mood.  Cr.  Cases,  179.  The  deci- 
sions, however,  are  the  other  way,  even  in  England,  with  the  single 
exception  of  that  case,  and  they  have  long  been  followed  here.  There 
is  nothing  so  palpably  absurd  in  this  as  to  warrant  our  overruling 
them." 

We  are  unable  to  discover  any  error  in  the  instructions  of  the 
presiding  judge.  Exceptions  overruled. 

Judgment  for  the  State. 

Kent,  Walton,  Barrows,  Danforth  and  Tapley,  JJ.,  concurred.^ 

1  Ace.  Weaver  v.  State,  77  Ala.  26;  Com.  v.  White,  11  Cush.  483.  —Ed. 


SECT.  II.]  ANONYMOUS. 


607 


WARD   V.   PEOPLE. 
Supreme  Court  of  New  York.     1842. 

[Reported  3  UiU,  395.] 

Error  to  the  Oneida  general  sessions,  where  Ward  was  convicted  of 
petit  larceny,  second  otfence.  The  indictment  charged  the  prisoner 
with  having  stolen  twenty-five  pounds  of  butter,  the  property  of  one 
John  Flagg.  On  the  trial  Flagg  testified  that  he  bought  the  butter  in 
question  'of  the  captain  of  a  canal  boat.  The  prisoner's  counsel  pro- 
posed to  ask  the  witness  if  he,  or  if  he  and  the  canal  boat  captain 
together,  did  not  steal  the  butter.  This  question  was  objected  to, 
and  the  objection  sustained,  whereupon  the  prisoner's  counsel  ex- 
cepted.^ it  appeared  in  the  course  of  the  trial  that  the  butter  stolen 
from  Flagg  had  been  previously  stolen  from  firkins  on  a  canal  boat,  and 
the  evidence  tended  strongly  to  connect  Flagg  with  the  larceny. 

W.  M.  Allen^  for  the  plaintiff  in  error. 

W.  C.  Noyes,  for  the  people. 

Bij  the  Court,  Nelson,  C.  J.  The  question  put  to  Flagg  was  pro- 
perly overruled.  If  the  question  had  been  answered  in  the  aflfirmative, 
the  ftict  would  have  been  immaterial,  because  possession  of  property 
in  the  thief  is  sufficient  to  make  it  the  subject  of  larceny  ;  and  the  title 
may  be  laid  either  in  the  owner  or  the  thief.  Thus  if  A.  steal  goods 
from  B.,  and  C.  afterwards  steal  the  same  goods  from  A.,  C.  is  a  felon 
both  as  to  A.  and  B.  2  East's  Cr.  L.  654  ;  2  Russ.  156  ;  1  Hale's 
P.  C.  507.-^ 


ANONYMOUS. 
King's  Bench.     1406. 

[Reported  Year  Booh  7  Hen.  IV.,  43,  pi.  9.] 

A  MAN  was  appealed  of  larceny  in  Middlesex,  while  the  felony  was 
done  in  London.  And  the  court  was  informed  that  the  appellee  after 
the  felony  done  had  carried  the  goods  into  the  county  of  Middlesex. 
And  the  court  said  that  for  tliat  reason  the  appeal  was  well  taken,  for 
when  a  man  robs  another  of  his  goods,  and  carries  them  into  divers 
counties,  he  commits  tlie  robbery  in  each  county,  and  the  appeal  is 
maintainable  in  whatever  county  the  plaintiff  will.  And  note  that  the 
felon  with  the  mainor  was  taken  in  London,  and  the  body  and  the 
mainor  were  made  come  before  the  king. 

1  Only  so  much  of  the  case  as  relates  to  this  exception  is  given. 

2  Affirmed  6  Hill,  144,  Foster,  Sen.,  dissenting  on  this  point.  See  ace.  Regina  v 
Wade,  1  C.  &  K.  739  ;  Com.  v.  Finn.  108  Mass.  466.  — Ed. 


608  ANONYMOUS.  fCHAP.  VIII. 

ANONYMOUS. 

Exchequer  Chamber.     1489. 

[Reported  Year  Book  4  Hen.  VII.,  5,  pi.  1.] 

One  was  arraigned  upon  an  indictment,  for  that  he  had  stolen  cer- 
tain goods,  etc.,  in  the  count}-  of  Surrey.  And  the  defendant  said 
that  he  was  indicted  for  taking  the  same  goods  on  the  same  day  in  the 
county  of  Middlesex,  and  was  acquitted,  which  was  the  same  felony. 
And  prayed  judgment,  if  for  that,  etc. 

Fisher.  It  is  no  plea,  because  it  shall  be  taken  most  beneficiall}- 
for  the  king,  and  they  may  have  been  stolen  twice  well  enough. 

Frowike.,  to  the  contrary.  For  where  goods  are  stolen  in  one  count}-, 
and  carried  into  another  count}-,  he  may  be  indicted  in  each  county, 
and  shall  have  judgment  of  life  ;  and  therefore  it  is  reason  that  if  he 
should  be  acquitted  in  one  county,  he  should  be  acquitted  in  the  other 
county.  And  if  one  should  be  beaten  in  one  county,  and  after  die  in 
another  county,  and  indictment  in  both  counties,  it  is  reason  that  if  he 
should  be  acquitted  in  one  county  that  should  help  him  in  the  other 
county,  etc. 

Hussey,  C.  J.  It  seems  no  plea.  And  as  I  understand,  trespass 
for  battery  committed  in  one  county  cannot  be  found  in  another  county 
on  pain  of  attaint ;  and  the  same  law  of  goods  taken  and  carried  out 
of  the  county  where  they  were  taken,  it  can  be  found  only  in  the  county 
where  the  taking  occurred,  and  that  on  pain  of  attaint.  But  the 
law  is  otherwise  in  appeal ;  for  there  he  may  bring  an  appeal  in  each 
county  where  the  goods  are  carried.  And  this  has  been  a  diversity, 
for  the  appeal  is  to  recover  his  goods,  and  affirms  property  continually 
in  the  party,  etc.,  but  it  is  otherwise  of  trespass  ;  for  it  is  not  to  recover 
the  goods,  but  damages  for  the  goods,  etc.  And,  sir,  I  take  it,  if  one 
steals  my  goods,  and  another  steals  the  goods  from  him,  I  shall  have 
an  appeal  against  the  second  felon  ;  but  it  is  otherwise  of  trespass. 
And  notwithstanding  the  appeal  lies  in  each  county  where  the  goods 
are  carried,  still  he  cannot  be  indicted  except  where  the  taking  was 
made,  for  the  indictment  is  not  to  have  the  goods,  etc. ;  and  that  has 
been  the  diversity  between  indictment  and  appeal.  And  so  here,  not- 
withstanding he  submits  that  it  is  the  same  felony,  that  cannot  be 
tried  ;  for  if  it  should  be  tried,  it  ought  to  be  tried  by  both  counties, 
and  here  neither  of  them  can  give  evidence  to  the  other,  for  the  takings 
are  so  several  that  one  cannot  give  evidence  nor  notice  to  the  other ; 
and  therefore,  notwithstanding  mischief  shall  happen  to  the  party,  such 
mischief  shall  be  borne  ;  for  in  one  county,  etc.,  without  cause  ;  and 
yet  he  ought  to  answer. 

Fairfax,  J.,  agreed  to  the  diversity  between  appeal,  indictment,  and 
trespass,  etc.,  and  said  that  the  allegation  that  it  is  the  same  felon\' 
could  not  be  tried  by  both  counties  when  he  is  acquitted  in  one  county, 


SECT.  II.]  REX    V.   POWERS.  609 

and  those  of  that  county  cannot  give  evidence  of  any  felony  in  that 
county. 

And  then  Jlorda/U  pleaded  the  plea,  and  prayed  that  it  be  allowed ; 
and  as  to  the  felony,   not  guilty. 

And  the  Chief  Justice  said  that  he  should  have  the  plea,  because  it 
Is  matter  in  law,  and  the  other  matter  in  fact,  ^t  tola  Curia  contra 
euvi. 

And  it  was  held  by  all  the  justices  and  barons  that  in  a  writ  of 
trespass  in  Middlesex  it  is  no  plea  to  say  that  he  has  recovered  for  a 
trespass  committed  in  the  county  of  Surrey-,  because  it  could  not  be 
understood  as  the  same  trespass  ;  but  some  at  the  bar  held  that  it  is 
different  in  felony,  because  it  is  felony  in  every  county  where  the  goods 
are,  or  come,  etc. 

Frowike  said :  For  the  same  reason  that  they  may  find  him  guilty  in 
appeal  for  a  felony  in  another  county,  for  the  same  reason  they  shall 
acquit  of  felony  conceived  in  another  county.  R.  See  T.  25  E.  3  f.  44. 
A.  8  H.  5.1 


REX  V.  POWERS. 
Crown  Case  Reserved.     1832. 

[Reported  1  Moody  C.  C.  349.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Selwyn,  K.  C,  at 
the  spring  Assizes  for  the  County  of  Dorset  in  the  year  1832,  and 
ordered  to  be  transported  for  seven  years  ;  but  the  execution  of  the 
sentence  was  respited  in  order  that  the  opinion  of  the  judges  might 
be  taken  on  the  case. 

The  indictment  charged  the  prisoner  with  stealing  at  Dorchester,  in 
the  county  of  Dorset,  a  quantity  of  wearing  apparel,  the  property  of 
Thomas  Cundy.  The  things  had  been  taken  by  the  prisoner  from  a 
box  of  the  prosecutor's  at  St.  Helier's  in  the  island  of  Jersey,  while 
the  prosecutor  was  absent  at  his  work  at  a  short  distance,  and  without 
his  leave  ;  the}'  were  shortly  afterwards  found  in  the  possession  of  the 
prisoner  at  Weymouth,  in  the  county  of  Dorset,  where  he  had  been 
apprehended  on  another  charge. 

A  doubt  occurred  whether  the  original  taking  was  such  whereof  the 
common  law  could  take  cognizance  ;  and  if  not  whether  the  case  fell 
within  the  statute  7  &  8  G.  IV.  c.  29,  s.  76  ;  or  in  other  words  whether 
the  island  of  Jerse}'  could  [be]  considered  as  part  of  the  United  King- 
dom. 2  Russell,  175.  If  the  original  taking  be  such  whereof  the 
common  law  cannot  take  cognizance,  as  if  the  goods  be  stolen  at  sea, 
the  thief  cannot  be  indicted  in  any  county  into  which  he  may  carry 
them.     3  Inst.  113  ;  1  Haw.  P.  C.  33,  s.  92.     A  similar  exception  pre- 

1  See  22  Lib.  Ass.  pi.  32.  —  Ed. 


610  COMMONWEALTH    V.    HOLDER.  [CHAP.  VIII. 

vailed  formerly  where  the  original  taking  was  in  Scotland  or  Ireland ; 
and  it  appears  to  have  been  holden  that  a  tiiief  who  had  stolen  goods 
in  Scotland  could  not  be  indicted  in  the  county  of  Cumberland,  where 
he  was  taken  with  the  goods.  Rex  v.  Anderson  and  others,  Carlisle 
summer  Assizes,  17G3;  and  before  the  judges,  November,  1763;  2 
East,  772,  c.  16,  s.  156. 

This  case  was  considered  at  a  meeting  of  all  the  judges  (except  Lord 
Lyndhurst,  C.  B.,  and  Taunton,  J.)  in  Easter  Term,  1832;  and  they 
held  unanimously  that  the  conviction  was  wrong  and  that  the  case  was 
not  within  7  &  8  G.  IV.  c.  29,  s.  76.^ 


PEOPLE  V.   GARDNER. 

Supreme  Court  of  Neav  York.     1807. 

[Iiepoi'ted  2  Johnson,  477.] 

The  prisoner  was  indicted  and  convicted  of  felony  at  the  sessions  in 
Washington  Count}',  for  stealing  a  horse.  On  the  trial  it  appeared 
that  the  original  taking  of  the  horse  was  in  the  State  of  Vermont,  but 
that  the  prisoner  was  apprehended  in  AVashington  County,  with  the 
horse  in  his  possession.  The  question  was  submitted  to  the  court, 
whether  the  prisoner  could  be  tried  and  punislied  in  this  state  for  the 
felony. 

Per  Ciiriarn.  We  are  of  opinion  that  the  prisoner  cannot  be  tried 
for  this  offence  in  this  state.  AVhen  the  original  taking  is  out  of  the 
jurisdiction  of  this  state,  the  offence  does  not  continue  and  accompany 
the  possession  of  the  thing  stolen,  as  it  does  in  the  case  where  a  thing 
islitolen  in  one  county,  and  the  thief  is  found  with  the  property  in 
another  county.  2  East's  Pleas  of  the  Crown,  774.  The  prisoner  car> 
be  considered  only  as  a  fugitive  from  justice,  from  tlie  State  o ' 
Vermont. 


/-frty, 


vC^ 


Ua  tht  ''U) 


'A  n 


COMMONWEALTH  v.   HOLDER. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  Gray,  7.] 

Indictment  for  stealing  at  Milford  in  this  county  goods  of  Henry  W. 
Dana.  At  the  trial  in  the  Court  of  Common  Pleas  there  was  evidence 
that   the   defendant   broke    and    entered    the    shop   of  said    Dana   at 

1  Arc.  Case  of  the  Admiralty,  13  Coke,  51  ;  Rex  v.  Anderson,  2  East  P.  C.  772; 
Reg.  V.  Debruiel,  11  Cox  C.  C.  207;  Reg.  v.  Carr,  15  Cox  C  C.  131  n.— Ed. 


SECT.  II.]  COMMONWEALTH    V.    HOLDER.  611 

Sraithfield  in  the  State  of  Rhode  Island,  and  stole  the  goods  mentioned 
in  the  indictment,  and  brought  them  into  this  county.  The  defendant 
asked  that  the  jury  might  be  instructed  that  the  indictment  could  not 
be  maintained,  because  the  courts  of  this  state  could  not  take  cogni- 
zance of  a  larceny  committed  in  another  state.  But  Mellcn,  C.  J., 
refused  so  to  instruct  the  jury,  and  instructed  them  that  the  evidence, 
if  believed,  was  sufficient  to  su[)port  the  indictment.  The  defendant 
being  convicted  alleged  exceptions. 

G.  F.   Verrr/,  for  the  defendant. 

J.  IT.  Clifford  (Attorney  General),  for  the  Commonwealth. 

Shaw,  C.  J.  A  majority  of  the  court  are  of  opinion  that  this  case 
must  be  considered  as  settled  by  the  case  of  Commonwealth  v.  Up- 
richard,  3  Gra}',  434,  and  the  principles  stated  and  the  precedents 
cited.  Though  to  some  extent  these  colonies  before  the  Revolution 
were  distinct  governments  and  might  have  different  laws,  it  was  not 
unreasonable,  as  they  all  derived  their  criminal  jurisprudence  from  tlie 
English  common  law,  to  regard  the  rule  applicable  to  a  theft  in  an 
English  county  of  goods  carried  b^'  the  thief  into  another  as  analogous, 
and  adopt  it.  We  are  of  opinion  that  Massachusetts  did  adopt  it,  and 
this  is  established  by  judicial  precedent,  before  and  since  the  Revolu- 
tion, and  is  now  settled  by  authority  as  the  law  of  this  state. 

Thomas,  J.  The  real  question  in  this  case  is,  whether  the  defendant 
can  be  indicted,  convicted,  and  punished  in  this  Commonwealth  for  a 
larceu}'  committed  in  the  State  of  Rhode  Island.  If  it  were  a  new 
question,  it  would  be  enough  to  state  it.  The  obvious,  the  conclusive 
answer  to  the  indictment  would  be  that  the  offence  was  committed 
within  the  jurisdiction  of  another,  and,  so  far  as  this  matter  is  con- 
cerned, independent  state,  of  whose  law  only  it  was  a  violation,  and 
of  which  its  courts  have  exclusive  cognizance.  B}'  the  law  of  that 
state  the  offence  is  defined  and  its  punishment  measured  ;  by  the  law 
which  the  defendant  has  violated  he  is  to  be  tried.  Whether  the  acts 
done  by  him  constitute  larcen}',  and,  if  so,  of  what  degree,  must  be 
determined  by  that  law.  Its  penalties  only  he  has  incurred  ;  its  means 
of  protection  and  deliverance  he  may  justly  invoke,  and  especiall}'  a 
trial  by  a  jur^'  of  his  peers  in  the  vicinage  where  the  offence  was 
committed. 

This  obvious  view  of  the  question  will  be  found  upon  reflection,  I 
think,  to  be  the  only  one  consistent  with  the  reasonable  security  of  the 
subject  or  the  well-defined  relations  of  the  states.  It  is  well  known 
that  the  laws  of  the  states  upon  the  subject  of  larceny  materially  differ. 
In  most  of  them  the  common  law  of  larceny  has  been  greatly  modified 
by  statutes.  The  jurisprudence  of  all  is  not  even  based  on  the  common 
law ;  in  several  the  civil  law  obtains. 

In  cases  where  a  difierence  of  law  exists,  by  which  law  is  the  defend- 
ant to  be  judged,  — the  law  where  the  offence  (if  any)  was  committed, 
or  where  it  is  tried?  For  example,  the  defendant  is  charged  with 
taking  with  felonious  intent  that  which  is  parcel  of  the  realty,  as  the 


G12  COMMONWEALTH    V.    HOLDER.  [CHAP.  VIII. 

gearing  of  a  mill  or  fruit  from  a  tree.  By  the  St.  of  1851,  c.  151,  the 
act  is  larcen}-  in  this  Commonwealth.  If  it  appears  that  in  the  state 
where  the  act  was  done  it  was,  as  under  the  common  law,  but  a  tres- 
pass, which  law  has  the  defendant  violated  and  by  which  is  he  to  be 
tried?  Or  suppose  the  defendant  to  be  charged  with  the  stealing  of 
a  slave,  —  a  felony  in  the  state  where  the  act  is  done,  but  an  offence 
not  known  to  our  laws.  The  ditficulty  in  both  cases  is  the  same.  You 
have  not  only  conflicting  jurisdictions,  but  different  rules  of  conduct 
and  of  judgment. 

But  supposing  the  definitions  of  the  offence  to  be  the  same  in  the 
two  states,  the  punishments  may  be  very  different.  Where  such  differ- 
ence exists,  which  penalty  has  the  defendant  justly  incurred,  and  which 
is  he  to  suffer?  For  example,  the  offence  is  punishable  by  imprison- 
ment in  Rhode  Island,  say  for  a  year ;  in  this  state  the  same  offence  is 
punishable  by  imprisonment  from  one  to  five  years  ;  is  the  defendant 
liable  to  the  heavier  punishment?  Or  suppose  he  has  been  convicted 
in  Rhode  Island,  and  in  consideration  of  his  having  indemnified  the 
owner  for  the  full  value  of  the  goods  taken,  his  punishment  has  been 
more  mercifully  measured  to  him,  can  he,  after  he  has  suffered  the 
punishment,  and  because  the  goods  were,  after  the  larceny,  brought 
into  this  state,  be  made  to  suffer  the  penalty  of  our  law  for  the  same 
offence?  Or  suppose  him  to  have  been  convicted  in  Rhode  Island  and 
a  full  pardon  extended  to  him,  can  he  be  tried  and  convicted  and  pun- 
ished here? 

Again  :  the  power  to  indict,  convict,  and  punish  the  offence  in  this 
state  proceeds  upon  the  ground  that  the  original  caption  was  felonious. 
If  the  original  taking  was  innocent  or  but  a  trespass,  the  bringing  into 
this  state ^would  not  constitute  a  larceny.  You  must,  therefore,  look  at 
the  law  of  the  state  where  the  first  caption  was  made.  And  how  is  the 
law  of  another  state  to  be  ascertained?  What  is  the  law  of  another 
state  is  a  question  of  fact  for  the  jury.  The  jury  in  this  way  are  in  a 
criminal  case  made  not  only  to  pass  upon  the  law,  but  to  pass  upon  it 
as  a  matter  of  evidence,  subject,  strictly  speaking,  neither  to  the 
direction  nor  the  revision  of  the  court. 

Again :  the  defendant  is  indicted  here  for  the  larceny  committed  ir\ 
Rhode  Island  :  while  in  custody  here  awaiting  his  trial,  he  is  demanded 
of  the  Executive  of  this  state  by  the  p:xecutive  of  Rhode  Island  as 
a  fugitive  from  the  justice  of  that  state,  under  the  provisions  of  the 
Constitution  of  the'United  States,  art.  4,  §  2,  and  the  U.  S.  St.  of 
1793,  c.  45.  Is  he  to  be  tried  here,  or  surrendered  up  to  the  state 
where  the  offence  was  committed,  and  tried  there?  Or  if  he  has  been 
already  tried  and  convicted  and  punished  in  this  state,  is  he  to  be  sent 
back  to  Rhode  Island  to  be  tried  and  punished  again  for  the  same 
offence?  And  would  his  conviction  and  punishment  here  be  any 
answer  to  the  indictment  there?  Or  if  he  has  been  fully  tried  and 
acquitted  here,  and  then  demanded  by  the  Executive  of  Rhode  Island, 
is  he,  upon  requisition,  to  be  sent  to  that  state  to  be  again  tried,  to 


SECT.  II.]  COMMONWEALTH   V.    HOLDER.  G13 

be  twice  put  in  jeopardy  for  the  same  oflFenee?     It  is  quite  plain  no 
ground  in  law  would  exist  for  a  refusal  to  surrender. 

The  defendant  was  indicted  for  larceny,  not  for  the  offence  of  bring- 
ing stolen  goods  into  the  Commonwealth.  He  was,  under  the  instruc- 
tion of  the  presiding  judge,  tried  for  the  larceny  in  Rhode  Island,  was 
convicted  for  the  larceny  in  Rhode  Island,  and  must  be  punished,  if 
a^'all,  for  the  larceny  in  Rhode  Island.  And  under  the  rule  given  to 
the  jury  is  presented  a  case  where,  for  one  and  the  same  moral  act, 
for  one  and  the  same  violation  of  the  rights  of  property,  the  subject 
may  be  twice  convicted  and  punished.  Nay,  more,  if  a  man  had  stolen 
a  watch  in  Rhode  Island  and  travelled  with  it  into  every  state  of  the 
Union,  he  might,  under  the  rule  given  to  the  jury,  if  his  life  endured 
so  long;  be  indicted  and  punished  in  thirt3-two  states  for  one  and  the 
same  otfence. 

And  it  is  well  to  observe  that  it  is  the  retention  of  the  property 
which  is  the  cause  of  the  new  offence,  and  the  carrying  of  it  from  the 
place  of  caption  into  another  state.  If  the  defendant  had  stolen  prop- 
erty in  Rhode  Island  and  consumed  or  destroyed  it,  and  then  had 
removed  to  Massachusetts,  but  one  offence  would  have  been  committed, 
and  that  in  Rhode  Island. 

Such  are  some  of  the  more  obvious  ditBculties  attending  the  position 
that  an  offence  committed  in  one  state  may  be  tried  and  punislied  in 
another.  The  doctrine  violates  the  first  and  most  elementary  princi- 
ples of  government.  No  state  or  people  can  assume  to  punish  a  man 
for  violating  the  laws  of  another  state  or  people.  The  surrender  of 
fugitives  from  justice,  whether  under  the  law  of  nations,  treaties  with 
foreign  powers,  or  the  provisions  of  the  Constitution  of  the  United 
States,  proceeds  upon  the  ground  that  the  fugitive  cannot  be  tried 
and  punished  b^'  an}-  other  jurisdiction  than  the  one  whose  laws  have 
been  violated.  Even  in  cases  of  the  invasion  of  one  country  by  the 
subjects  of  another,  it  is  the  violation  of  its  own  laws  of  neutrality 
that  the  latter  country  punishes,  and  not  the  violation  of  the  laws  of 
the  country  invaded.  The  exception  of  piracy  is  apparent  rather  than 
real.  Piracy  may  be  punished  b}-  all  nations  because  it  is  an  offence 
against  the  law  of  nations  upon  the  seas,  which  are  the  highways  of 
nations. 

The  ruling  of  the  learned  Chief  Justice  of  the  Common  Pleas  was,  I 
may  presume,  based  upon  the  decisions  of  this  court  in  Commonwealth 
V.  CuUins,  1  Mass.  116,  and  Commonwealth  v.  Andrews,  2  Mass.  14. 

It  is  certainly  the  general  duty  of  the  court  to  adhere  to  the  law  as 
decided.  Especially  is  this  the  case  where  a  change  in  the  decision 
would  impair  the  tenure  by  which  the  rights  and  property  of  the  sub- 
ject are  held.  But  even  with  respect  to  these,  where  it  is  clear  a  case 
has  been  decided  against  the  well  settled  principles  of  law  and  of 
reason,  it  is  the  duty  and  the  practice  of  the  courts  to  revise  such 
decision,  and  to  replace  the  law  on  its  old  and  solid  foundation.  This 
is  peculiarly  the  duty  of  the  courts  where  such  decision  works  its  in' 


614  COMMONWEALTH    V.    HOLDER.  [CHAP.  VIII. 

justice  b}-  impairing  the  personal  rights  of  the  citizen,  or  by  subjecting 
him  to  burdens  and  penalties  which  he  never  justl}-  incurred. 

In  my  judgment,  the  courts  of  this  Commonwealth  have  not,  and 
never  had,  under  the  Constitution  of  the  United  States  or  otherwise, 
the  rightful  power  to  try  a  man  for  an  offence  committed  in  another 
state.  It  is  in  vain,  it  seems  to  me,  to  attempt  to  preserve  and  make 
rules  of  conduct  decisions  founded  upon  wholly  erroneous  views  of  the 
relations  which  tlie  states  of  the  Union  bear  to  each  other  under  the 
Constitution,  and  in  conflict  with  well  settled  principles  of  constitu- 
tional and  international  law. 

I  should  be  content  to  rest  my  dissent  from  the  judgment  of  the 
court  in  the  case  at  bar  upon  the  principles  affirmed  in  the  recent  case 
of  Commonwealth  v.  Uprichard,  3  Gra}-,  434.  In  effect  that  case 
overrules,  as  its  reasoning  thoroughl}-  undermines,  the  earlier  cases. 
The}"  cannot  stand  together. 

But  as  the  decision  in  the  case  at  bar  rests  upon  the  authority  of 
the  cases  in  the  first  and  second  of  Massachusetts  Reports,  it  may  be 
well  to  examine  with  care  the  grounds  upon  which  the}'  rest.  Such 
an  examination  will  show,  I  think,  not  only  that  the  cases  were  put 
upon  erroneous  views  as  to  the  relation  of  the  states,  but  that  they 
were  also  unsound  at  common  law. 

In  the  case  of  Commonwealth  v.  Cullins,  a  jury  trial  where  three 
judges  of  the  court  were  present,  the  evidence  showing  that  the  goods 
were  taken  in  the  State  of  Rhode  Island,  Mr.  Justice  vSedgwick,  who 
charged  the  jury,  said  that  "  the  court  were  clearly  of  opinion  that 
stealing  goods  in  one  state  and  conveying  stolen  goods  into  another 
state  was  similar  to  stealing  goods  in  one  county  and  conveying  the 
stolen  goods  into  another,  which  was  always  holden  to  be  felony  in 
both  counties."  Whatever  the  points  of  similarity,  there  w;as_this 
obvious  and  vital  difference,  to  wit,  that  conviction  in  one  county  was 
a  bar  to  conviction  in  another,  and  that  conviction  in  one  state  is  no 
bar  to  conviction  in  another  state. 

It  was  a  doctrine  of  the  common  law  that  the  asportation  of  stolen 
goods  from  one  county  to  another  was  a  new  caption  and  felony  in 
the  second  county,  —  a  legal  fiction  devised  for  greater  facility  in  con- 
victing the  offender  where  it  was  uncertain  where  the  first  caption  took 
place.  The  foundation  of  the  rule  was  that  the  possession  of  the  owner 
continued,  and  that  every  moment's  continuance  of  the  trespass  may 
constitute  a  caption  as  well  as  the  first  taking.  But  in  what  respect 
was  the  taking  in  one  state  and  conveying  into  another  state  similar  to 
the  taking  in  one  county  and  conveying  into  another  county?  It  could 
onlv  be  "  similar"  because  the  legal  relation  which  one  state  bears  to 
another  is  similar  to  that  which  one  county  bears  to  another;  because, 
under  another  name,  there  was  the  same  thing.  If  a  man  is  to  be  con- 
victed of  crime  by  analogy,  the  analogy  certainly  should  be  a  close 
one.  Here  it  was  but  a  shadow.  In  the  diflferent  counties  there  was 
one  law,  one  mode  of  trial,  the  same  interpretation  of  the  law,  and  the 


SECT.  II.]  COMMONWEALTH   V.   HOLDER.  615 

same  punishment.     The  rule,  mode  of  trial,  and  jurisdiction  were  not 
changed. 

The  states  of  the  Union,  it  is  quite  plain,  hold  no  such  relation  to 
each  other.  As  to  their  internal  police,  their  law  of  crimes  and  punish- 
ments, thej'  are  wholly  independent  of  each  other,  having  no  common 
law  and  no  common  umpire.  The  provision  indeed  in  the  Constitu- 
tion of  the  United  States  for  surrendering  up  fugitives  from  justice  by 
one  state  to  another  is  a  clear  recognition  of  the  independence  of  the 
states  of  each  other  in  these  regards.  It  excludes  the  idea  of  any 
jurisdiction  in  one  state  over  crimes  committed  in  another,  and  at  the 
same  time  saves  any  necessity  or  reason  for  such  jurisdiction.  Nor 
is  there  any  provision  in  the  Constitution  of  the  United  States  which 
impairs  such  independence,  so  far  as  the  internal  police  of  the  states 
is  concerned.  On  the  other  hand,  the  widest  diversity  exists  in  the 
institutions,  the  internal  police,  and  the  criminal  codes  of  the  several 
states,  some  of  them,  as  Louisiana  and  Texas,  having  as  the  basis 
of  their  jurisprudence  the  civil  and  not  the  common  law.  In  the 
relation  which  Louisiana  holds  to  this  State  can  any  substantial  analogy 
be  found  to  that  which  Surrey  bears  to  Middlesex? 

An  analogy  closer  and  more  direct  could  have  been  found  in  the 
books  when  Commonwealth  v.  CuUins  was  decided.  It  was  that  of 
Scotland  to  England,  subject  both  to  one  crown  and  one  legislature  ; 
yet  it  had  been  decided  that  when  one  stole  goods  in  Scotland  and 
carried  them  to  England,  he  could  not  be  convicted  in  the  latter 
country.  Rex  v.  Anderson  (1763),  2  East  P.  C.  772;  2  Russell  on 
Crimes  (7th  Amer.  ed.),  119.  Or  an  analogy  might  have  been  found 
in  the  cases  of  goods  stolen  on  the  high  seas  and  brought  into  the 
counties  of  England,  of  which  the  courts  of  common  law  refused  to 
take  cognizance  because  they  were  not  felonies  committed  within  their 
jurisdiction.  1  Hawk.  c.  33,  §  52  ;  3  Inst.  113.  In  these  cases  a 
test  would  have  been  found,  applicable  to  the  alleged  larceny  of  Cullins, 
to  wit,  the  offence  was  not  committed  in  a  place  witliin  the  jurisdiction 
of  the  court,  but  in  a  place  as  foreign  to  their  jurisdiction,  so  far  as 
this  subject-matter  was  concerned,  as  England  or  the  neighboring 
provinces.  The  case  of  Commonwealth  v.  Cullins  has  no  soUd  principle 
to  rest  upon. 

The  case  of  Commonwealth  v.  Andrews,  two  years  later,  may  be 
held  to  recognize  the  rule  laid  down  in  Commonwealth  v.  Cullins, 
though  it  was  an  indictment  against  Andrews  as  the  receiver  of  goods 
stolen  by  one  Tuttle  in  New'  Hampshire  ;  and  though  there  is,  at  the 
least,  plausible  ground  for  saying  that  there  was  a  new  taking  by 
Tuttle  at  Harvard  in  the  county  where  the  defendant  was  indicted  and 
tried.  Indeed,  Mr.  Justice  Parker  takes  this  precise  ground  ;  though 
he  adds  that  "  the  common-law  doctrine  respecting  counties  may  well 
be  extended  by  analogy  to  the  case  of  states  united,  as  these  are, 
under  one  general  government."  If  that  union  was  with  reference  to 
or  concerned  the  internal  police  or  criminal  jurisprudence  of  the  several 


616  COMMONWEALTH   V.   HOLDER.  [CHAP.  VIII. 

States  ;  if  it  was  not  obviously  for  other  different,  distinct,  and  well 
defined  purposes  ;  and  if  we  could  admit  the  right  of  the  court  to 
extend  b}'  analogy  the  provisions  of  the  criminal  law  and  so  to  enlarge 
its  jurisdiction,  —  there  would  be  force  in  the  suggestion.  As  it  is,  we 
must  be  careful  not  to  be  misled  by  the  errors  of  wise  and  good  men. 

Judge  Thatcher  puts  the  case  wholly  on  the  felonious  taking  at 
Harvard. 

Mr.  Justice  Sedgwick,  though  having  the  same  view  as  to  the  taking 
at  Harvard,  does  not  rest  his  opinion  upon  it,  but  upon  the  ground 
that  the  continuance  of  the  trespass  is  as  much  a  wrong  as  the  first 
taking.  This  doctrine  applies  as  well  where  the  original  caption  was 
in  a  foreign  country  as  in  another  state  of  the  Union.  If  you  hold 
that  every  moment  the  thief  holds  the  property  he  commits  a  new 
felon^',  you  may  multiply  his  oflTences  ad  infinitum  ;  but  in  so  carrying 
out  w^hat  is  at  the  best  a  legal  fiction,  you  shock  the  common-sense  of 
men  and  their  sense  of  justice.  Mr.  Justice  Sedgwick  will  not  admit 
the  force  of  the  objection  that  the  thief  would  be  thus  twice  punished, 
but  regards  with  complacency  such  a  result.  But  as  we  are  to  pre- 
sume that  the  punishment  is  graduated  to  the  offence,  and,  as  far  as 
punishment  may,  expiates  the  wrong,  the  mind  shrinks  from  such  a 
consequence.  But  saying  that  whatever  he  might  think  upon  this 
question  if  it  were  res  integra,  he  puts  his  decision  upon  the  case  of 
Paul  Lord,  decided  in  1792,  and  that  of  Commonwealth  v.  Cullins. 

Chief  Justice  Dana  relies  upon  the  cases  before  stated  and  a 
general  practice,  and  also  upon  the  principle  that  every  moment's 
felonious  possession  is  a  new  caption. 

Such  was  the  condition  of  the  law  in  this  state  when  the  case  of 
Commonwealth  v.  Uprichard  came  before  the  court.  In  that  case  the 
original  felonious  taking  was  in  the  province  of  Nova  Scotia.  The 
bringing  of  the  stolen  goods  into  this  Commonwealth  was  held  not  to 
be  a  larceny  here.  But  if  it  be  true  that  every  act  of  removal  or  change 
of  possession  is  a  new  caption  and  asportation,  that  every  moment's 
continuance  of  the  trespass  is  a  new  taking,  —  if  this  legal  fiction  has 
any  life,  it  is  difficult  to  see  why  the  bringing  of  the  goods  within 
another  jurisdiction  was  not  a  new  offence.  No  distinction  in  principle 
exists  between  this  case  and  a  felonious  taking  in  another  state  and 
bringing  into  this.  So  far  as  the  law  of  crimes  and  punishments  is 
concerned,  the  states  are  as  independent  of  each  other  as  are  the  States 
and  the  British  Provinces. 

The  case  of  Commonwealth  v.  Uprichard  rests,  I  think  immovably, 
upon  the  plain  grounds  that  laws  to  punish  crime  are  local  and  limited 
to  the  boundaries  of  the  States  which  prescribe  them  ;  that  the  com- 
mission of  a  crime  in  another  State  or  country  is  not  a  violation  of  our 
^aw,  and  does  not  subject  the  offender  to  any  punishment  prescribed  by 
our  law.  These  are  principles  of  universal  jurisprudence,  and  as  sound 
as  they  are  universal. 

It  is  sometimes  said  that  after  all  the  offender  is  only  tried  and  con- 


SECT.  II.]  STANLEY    V.    STATE.  G17 

victed  for  the  offence  against  our  laws.  This  clearl}-  is  not  so.  It  is 
onl}'  by  giving  force  to  the  law  of  the  country  of  the  original  caption 
that  we  can  establish  the  larcen}".  It  is  the  continuance  of  the  caption 
felonious  b}-  the  law  of  the  place  of  caption.  In  the  directions  given 
to  the  jury  such  etiect  is  given  to  the  laws  of  Rhode  Ish\nd.  The  jury 
wei-e  instructed  that  if  the  defendant  broke  and  entered  into  the  shop 
of  Henry  W.  Dana  in  Sinithfield  in  Rhode  Island'and  thence  brought 
the  goods  into  this  count}',  the  indictment  could  be  maintained.  The 
felonious  taking  in  Rhode  Island  is  the  inception  and  groundwork  of 
the  otience.  The  proceeding  is  in  substance  and  effect  but  a  mode  of 
enforcing  the  laws  of  and  assuming  jurisdiction  over  offences  committed 
in  another  state. 

For  the  reasons  thus  imperfectl}'  stated,  I  am  of  opinion  that  the 
instructions  of  the  Court  of  Common  Pleas  were  erroneous,  that  the 
exceptions  should  be  sustained,  the  verdict  set  aside,  and  a  new  trial 
granted.  Exceptio7is  overruled. 

STANLEY   V.    STATE. 
Supreme  Court  of  Ohio.     1873. 

[Reported  24  Ohio  State,  166.] 

McIlvaine,  J.^  At  the  November  term,  1873,  of  the  Court  of 
Common  Pleas  of  Cuyahoga  County,  the  plaintiff  in  error,  Willianj 
Stanlej',  was  convicted  of  the  crime  of  grand  larceny,  and  sentenced 
for  a  term  of  years  to  the  penitentiary-. 

The  indictment  upon  which  he  was  convicted  charged  "  that  AVilliam 
Stanley,  late  of  the  count}-  aforesaid,  on  the  twentieth  da}-  of  June,  in 
the  }-^ar  one  thousand  eight  hundred  and  seventy-three,  at  the  county 
aforesaid,  with  force  and  arms,"  certain  silverware,  "  of  the  goods  and 
chattels  and  property  of  George  P.  Harris,  then  and  there  being,  then 
and  there  unlawfully  and  felonioush-  did  steal,  take,  and  carry  away," 
etc. 

The  following  facts  were  proven  at  the  trial:  1.  That  the  good* 
described  in  the  indictment  belonged  to  Harris,  and  were  of  the  value 
of  one  hundred  and  sixty-five  dollars.  2.  That  they  were  stolen  from' 
Harris  on  the  20th  of  June,  1873,  at  the  cit}*  of  London,  in  the  domin- 
ion of  Canada.  3.  That  they  were  afterward,  on  the  26th  day  of  same 
month,  found  in  the  possession  of  the  defendant,  in  said  countv  of 
Cuyahoga.  It  is  also  conceded  that,  in  order  to  convict,  the  jur}-  must 
have  found  that  the  goods  were  stolen  by  the  defendant  in  the  dominion 
of  Canada,  and  carried  thence  by  him  to  the  State  of  Ohio. 

Upon  this  state  of  facts,  was  the  prisoner  lawful!}-  convicted  ?     In 

^  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


618  STANLEY  V.    STATE.  [CHAP.  VIII. 

other  words,  if  property  be  stolen  at  a  place  be3'ond  the  jurisdiction  of 
this  state  and  of  the  United  States,  and  afterward  brought  into  this 
state  b}'  the  thief,  can  he  be  lawfully  convicted  of  larceny  in  this 
state  ? 

In  view  of  the  free  intercourse  between  foreign  countries  and  this 
state,  and  the  immense  immigration  and  importation  of  property  from 
abroad,  this  question  is  one  of  very  great  importance  ;  and  I  may  add 
that  its  determination  is  unaided  by  legislation  in  this  state. 

In  resolving  this  question  we  have  been  much  embarrassed  b}'  a 
former  decision  of  this  court,  in  Hamilton  v.  The  State,  11  Ohio,  435. 
In  that  case  it  was  held  by  a  majorit}'  of  the  judges  that  a  person 
having  in  his  possession  in  this  state  propert}-  which  had  been  stolen 
by  him  in  another  state  of  the  Union,  might  be  convicted  here  of 
larcen}'. 

The  decision  appears  to  have  been  placed  upon  the  ground  "  that  a 
long-sustained  practice,  in  the  criminal  courts  of  this  state,  had  settled 
the  construction  of  the  point,  and  established  the  right  to  convict  in 
such  cases." 

Whether  that  decision  can  be  sustained  upon  the  principles  of  the 
common  law  or  not,  it  must  be  conceded  that  for  more  than  thirty 
years  it  has  stood,  unchallenged  and  unquestioned,  as  an  authoritative 
exposition  of  the  law  of  this  state.  And  although  it  has  received  no 
express  legislative  recognition,  it  has  been  so  long  followed  in  our 
criminal  courts,  and  acquiesced  in  by  other  departments  of  the  govern- 
ment, that  we  are  inclined  to  the  opinion  that  it  ought  not  now  to  be 
overruled  ;  but,  on  the  other  hand,  its  rule  should  be  applied  and  sus- 
tained, in  like  cases,  upon  the  principle  of  stare  decisis. 

Before  passing  from  Hamilton  v.  Tlie  State,  it  should  be  added  that 
the  same  question  has  been  decided  in  the  same  way  by  the  courts  of 
several  of  our  sister  States.  The  State  v.  Ellis,  3  Conn.  185  ;  The 
State  V.  Bartlett,  11  Vt.  650  ;  The  State  v.  Underwood,  49  Maine,  181  ; 
Watson  V.  The  State,  36  Miss.  593  ;  The  State  v.  Johnson,  2  Oregon, 
115;  The  State  v.  Bennett,  14  Iowa,  479  ;  Ferrell  t?.  Commonwealth, 
1  Duvall,  153;  Commonwealth  u.  Cullins,  1  Mass.  116.  The  same 
point  has  been  decided  the  same  way  in  several  subsequent  cases  in 
Massachusetts. 

The  exact  question,  however,  now  before  us  has  not  been  decided  by 
this  court ;  a.nd  we  are  unanimously  of  opinion  that  the  rule  laid  down 
in  Hamilton  v.  The  State  should  not  be  extended  to  cases  where  the 
propert}'  was  stolen  in  a  foreign  and  independent  sovereignt}'. 

We  are  unwilling  to  sanction  the  doctrine  or  to  adopt  the  practice, 
whereby  a  crime  committed  in  a  foreign  country,  and  in  violation  of 
the  laws  of  that  countrj'  only,  may,  by  construction  and  a  mere  fiction, 
be  treated  as  an  offence  committed  within  this  state  and  in  violation  of 
the  laws  thereof.  In  this  case  the  goods  were  stolen  in  Canada.  They 
were  there  taken  from  the  custodj'  of  the  owner  into  the  custod}'  of  the 
thief.     The   change   of  possession    was   complete.     The   goods    were 


SECT.  Il.J  STANLEY   V.    STATE.  619 

afterward  carried  b}'  the  thief  from  the  Dominion  of  Canada  to  tlie 
State  of  Ohio.  During  the  transit  his  possession  was  continuous  and 
uninterrupted.  Now,  the  theory  upon  vvliich  this  conviction  is  sought 
to  be  sustained  is  that  the  legal  possession  of  the  goods  remained  all 
the  while  in  the  owner.  If  tliis  theory  be  true,  it  is  true  as  a  fiction  of 
the  law  only.  The  fact  was  otherwise.  A  further  theory  in  support 
of  the  conviction  is  that  as  soon  as  the  goods  arrived  within  the  State 
of  Ohio,  the  thief  again  took  them  from  the  possession  of  the  owner 
into  his  own  possession.  This  theory  is  not  supported  b}'  the  facts, 
nor  is  there  any  presumption  of  law  to  sustain  it. 

That  the  right  of  possession,  as  well  as  the  right  of  propert}:, 
remained  all  the  time  in  the  owner  is  true  as  matter  of  law.  And  it  is 
also  true,  as  a  matter  of  fiction,  that  the  possession  of  the  thief, 
although  exclusive  as  it  must  have  been  in  order  to  make  him  a  thief, 
is  regarded  as  the  possession  of  the  owner,  for  some  purposes.  Thus, 
stolen  goods,  while  in  the  possession  of  the  thief,  may  be  again  stolen 
b}-  another  thief;  and  the  latter  may  be  charged  with  taking  and  carry- 
ing away  the  goods  of  the  owner.  And  for  the  purpose  of  sustaining 
such  charge,  the  possession  of  the  first  thief  will  be  regarded  as  the 
possession  of  the  true  owner.  This  fiction,  however,  in  no  way  changes 
the  nature  of  the  facts  which  constitute  the  crime  of  larceny. 

What  we  deny  is  that  a  mere  change  of  place  In'  the  thief,  while  he 
continues  in  the  uninterrupted  and  exclusive  possession  of  the  stolen 
. jproperty,  constitutes  a  new  "  taking  "  of  the  property,  either  as  matter 
of  fact  or  of  law. 

Larcen}-,  under  the  statute  of  this  state,  is  the  same  as  at  common 
law,  and  may  be  defined  to  be  the  felonious  taking  and  carr3-ing  awaj' 
of  the  personal  propertj'  of  another.  But  no  offence  against  this  stat- 
ute is  complete  until  ever}-  act  which  constitutes  an  essential  element 
in  the  crime  has  been  committed  within  the  limits  of  this  state.  The 
act  of  "taking"  is  an  essential  element  in  the  crime,  and  defines  the 
act  b}'  which  the  possession  of  the  property  is  changed  from  the  owner 
to  the  thief.  But  the  act  of  "  taking  "  is  not  repeated  after  the  change 
of  possession  is  once  complete,  and  while  the  possession  of  the  thiet 
continues  to  be  exclusive  and  uninterrupted.  Hence,  a  bailee  or  finder 
of  goods,  who  obtains  complete  possession  without  any  fraudulent 
intent,  cannot  be  convicted  of  larceu}-  b}'  reason  of  anj-  subsequent 
appropriation  of  them. 

We  fully  recognize  the  common-law  practice,  that  when  propert}'  is 
stolen  in  one  county,  and  the  thief  is  afterward  found  in  another 
count}'  with  the  stolen  property  in  his  possession,  he  may  be  indicted 
and  convicted  in  either  county,  but  not  in  both.  This  practice  obtained 
notwithstanding  the  general  rule  that  every  prosecution  for  a  criminal 
cause  must  be  in  the  county  where  the  crime  was  committed.  The 
reason  for  the  above  exception,  to  the  genei'al  rule  is  not  certainly 
known,  nor  is  it  important  in  this  case  that  it  should  be  known,  as  it 
relates  to  the  matter  of  venue  only,  and  does  not  aflfect  the  substance 


620  STANLEY   V.    STATE.  [CHAP.  VIII. 

of  the  offence.  "We  are  entirely-  satisfied,  however,  that  the  right  to 
prosecute  the  thief  in  any  county  wherein  he  was  found  in  possession 
of  tlie  stolen  property,  was  not  asserted  by  the  Crown,  because  of  the 
fact  that  a  new  and  distinct  larceny  of  the  goods  was  committed  when- 
ever and  wherever  the  thief  might  pass  from  one  county  into  another. 
His  exemption  from  more  than  one  conviction  and  punishment  makes 
this  proposition  clear  enough.  The  common  law  provided  that  no 
person  should  be  twice  vexed  for  the  same  cause.  It  was  through  the 
operation  of  this  principle  that  the  thief  who  stole  propertj'  in  one 
county,  and  was  afterward  found  with  the  fruits  of  his  crime  in  another, 
could  not  be  tried  and  convicted  in  each  county.  He  was  guilt}-  of  one 
offence  onh',  and  that  offence  was  complete  in  the  county  where  the 
property  was  first  "  taken  "  by  the  thief,  and  removed  from  the  place 
in  which  the  owner  had  it  in  possession. 

When  goods  piraticall}'  seized  upon  the  high  seas  were  afterward 
carried  b}-  the  thief  into  a  county  of  England,  the  common-law  judges 
refused  to  take  cognizance  of  the  larceny,  "  because  the  original  act  — 
namely,  the  taking  of  them  —  was  not  an^'  offence  whereof  the  com- 
mon law  taketh  knowledge  ;  and  by  consequence,  the  bringing  them 
into  a  count}'  could  not  make  the  same  a  felonv  punishable  by  our 
law."     13  Coke,  53  ;  3  Inst.  113  ;  1  Hawk.  c.  19,  sec.  52. 

The  prisoner  was  charged  with  larceny  at  Dorsetshire,  where  he  had 
possession  of  the  stolen  goods.  The  goods  had  been  stolen  by  him  in 
the  island  of  Jersey,  and  afterward  he  brought  them  to  Dorsetshire. 
The  prisoner  was  convicted.  All  the  judges  (except  Raymond,  C.  B., 
and  Taunton,  J.,  who  did  not  sit)  agreed  that  the  conviction  was 
wrong.     Rex  v.  Prowes,  1  Moody  C.  C.  349. 

Property-  was  stolen  b\'  the  prisoner  in  France,  and  w^as  transported 
to  London,  where  it  was  found  in  his  possession.  Parke,  B.,  directed 
the  jur}'  to  acquit  the  prisoner  on  the  ground  of  the  want  of  jurisdic- 
tion, which  was  done.     Regina  v.  Madge,  9  Car.  &  P.  29. 

A  similar  decision  was  made  in  a  case  where  the  property  was  stolen 
in  Scotland  and  afterward  carried  by  the  thief  into  England.  2  East 
P.  C.  772,  c.  16,  sec.  156. 

This  rule  of  the  common  law  was  afterward  superseded,  in  respect  to 
the  United  Kingdom,  In-  the  statutes  of  13  Geo.  III.,  c.  21,  sec.  4,  and 
7  and  8  Geo.  IV.,  c.  29,  sec.  76,  wherein-  prosecutions  were  authorized 
in  any  county  in  which  the  thief  was  found,  in  possession  of  property 
stolen  by  him  in  any  part  of  the  United  Kingdom. 

In  Commonwealth  v.  Uprichard,  3  Gray,  434,  the  property  had  been 
stolen  in  the  province  of  Nova  Scotia,  and  thence  carried  by  the  thief 
into  Massachusetts.  The  defendant  was  convicted  of  larcen}-  charged 
to  have  been  committed  in  the  latter  state.  This  conviction  was  set 
aside  by  a  unanimous  court,  although  two  decisions  had  been  made  b}- 
the  same  court  aflSrming  convictions  w-here  the  property  had  been 
stolen  in  a  sister  state,  and  afterward  brought  by  the  thief  into  that 
commonwealth.      Without    overruling   the  older   cases,    Chief-Justice 


SKCT.  Il.J  STANLEY  V.   STATE.  621 

Shaw,  in  delivering  the  opinion  of  tlio  court,  distinguished  between  the 
two  classes  of  cases. 

The  following  cases  are  in  point,  that  a  state,  into  which  stolen 
goods  are  carried  b}-  a  thief  from  a  sister  state,  has  no  jurisdiction  to 
convict  for  the  larceny  of  tlie  goods,  and  a  fortiori  when  the  goods 
were  stolen  in  a  foreign  country:  In  New  York:  People  w.  Gardner, 
2  Johns.  477;  People  v.  Schenk,  2  Johns.  479.  The  rule  was  after- 
ward changed  in  that  state  by  statute.  New  Jersey  :  The  State  v. 
Le  Blanch,  2  Vroom,  82.  Pennsylvania:  Simmons  v.  Commonwealth, 
5  Binn.  617.  North  Carolina:  The  State  v.  Brown,  1  Ilayvv.  100. 
Tennessee:  Simpson  i'.  The  State,  4  Humph.  45G.  Indiana:  Beall  v. 
The  State,  15  Ind.  378.  Louisiana  :  The  Slate  v.  Reonnals,  14  L. 
An.  278. 

There  are  two  cases  sustaining  convictions  for  larcen}'  in  the  States, 
where  the  property  had  been  stolen  in  the  Piritish  Provinces :  The 
State  v.  Bai'tlett,  11  Vermont,  G50,  and  The  State  v.  Underwood,  49 
Maine,  181.  In  Bartlett's  case,  the  principle  is  doubted,  but  the  prac- 
tice adopted  in  cases  where  tlie  property  was  stolen  in  a  sister  state 
was  followed,  and  the  application  of  the  principle  thereby  extended. 
Underwood's  case  was  decided  by  a  majority  of  the  judges. 

After  reviewing  the  cases,  we  think  the  weight  of  authorit\'  is  against 
the  conviction  and  judgment  below.  And  in  the  light  of  principle,  we 
have  no  hesitanc}-  in  holding  that  the  court  below  had  no  jurisdiction 
over  the  offence  committed  by  the  prisoner. 

The  judgment  below  is  wrong,  unless  every  act  of  the  defendant 
which  was  necessary'  to  complete  the  offence  was  committed  withiii 
the  State  of  Ohio  and  in  violation  of  the  laws  thereof.  This  proposition 
is  not  disputed.  It  is  conceded  b}'  the  prosecution  that  the  taking  as 
well  as  the  removal  of  the  goods  animo  furandi^  must  have  occurred 
within  the  limits  of  Ohio.  It  is  also  conceded  that  the  first  taking,  as 
well  as  the  first  removal  of  the  goods  alleged  in  this  case  to  have  been 
stolen,  was  at  a  place  beyond  the  limits  of  the  state,  and  within  tho 
jurisdiction  of  a  foreign  and  independent  sovereignty.  Now,  the  doc^ 
trine  of  all  the  cases  is  that  the  original  "taking"  and  the  origina'. 
asportation  of  the  goods  b}'  the  prisoner  must  have  been  under  such 
circumstances  as  constituted  a  larcenv-  If  the  possession  of  the  goods 
by  the  defendant  before  they  were  brought  into  this  state  was  a  lawful 
possession,  there  would  be  no  pretence  that  the  conviction  was  proper. 
The  same,  if  his  possession  was  merel}'  tortious.  The  theory  of  the 
law  upon  which  the  propriety-  of  the  conviction  is  claimed  is  based  on 
the  assumption  that  the  property-  was  stolen  in  Canada  by  the  prisoner. 

B3'  what  rule  shall  it  be  determined  whether  the  acts  of  the  prisoner, 
whereby  he  acquired  the  possession  of  the  goods  in  Canada,  consti- 
tuted the  crime  of  larceny?  By  the  laws  of  this  state?  Certainly 
not.  The  criminal  laws  of  this  state  have  no  extra-territorial  opera- 
tion. If  the  acts  of  the  prisoner,  whereb}'  he  came  in  possession  of 
the    property  described  in  the  indictment,  were  not   inhibited  by  the 


622  STANLEY    V.    STATE.  [CHAP.  VIII. 

laws  of  Canada,  it  is  perfectly  clear  that  he  was  not  guilty  of  larcen}' 
there.  It  matters  not  that  the}'  were  such  as  would  have  constituted 
larceny  if  the  transaction  had  taken  place  in  this  state. 

Shall  the  question  whether  or  not  the  "  taking"  of  the  property  b}' 
the  prisoner  was  a  crime  in  Canada  be  determined  by  the  laws  of  that 
country?  If  this  be  granted,  then  an  act  which  was  an  essential  ele- 
ment in  the  combination  of  facts  of  which  Stanle}'  was  found  guilty 
was  in  violation  of  the  laws  of  Canada,  but  not  of  this  state  ;  and  it 
was  because  the  laws  of  Canada  were  violated  that  the  prisoner  was 
convicted.  If  the  laws  of  that  country-  had  been  different,  though  tlie 
conduct  of  the  prisoner  had  been  the  same,  he  could  not  have  been 
convicted.  I  can  see  no  wa}-  to  escape  this  conclusion,  and  if  it  be 
correct,  it  follows  that  the  acts  of  the  prisoner  in  a  foreign  country,  as 
well  as  bis  acts  in  this  state,  were  essential  elements  in  his  offence  ; 
therefore,  no  complete  offence  was  committed  in  this  state  against  the 
laws  thereof. 

I  have  no  doubt  the  legislature  might  make  it  a  crime  for  a  thief  to 
bring  into  this  state  property  stolen  by  him  in  a  foreign  countr}'.  And 
in  order  to  convict  of  such  crime,  it  w'ould  be  necessary-  to  prove  the 
existence  of  foreign  laws  against  larcen}'.  The  existence  of  such 
foreign  laws  would  be  an  ingredient  in  the  statutory  offence.  But  that 
offence  would  not  be  larceny  at  common  law,  for  the  reason  that  lai'ceny 
at  common  law  contains  no  such  element.  It  consists  in  taking  and 
carrying  away  the  goods  of  another  person  in  violation  of  the  rules  of 
the  common  law,  without  reference  to  an}"  other  law  or  the  laws  of  any 
other  country. 

It  may  be  assumed  that  the  laws  of  nieum  et  tuum  prevail  in  every 
country,  whether  civilized  or  savage.  But  this  state  has  no  concern  in 
them  further  than  to  discharge  such  duties  as  are  imposed  upon  it  by 
the  laws  of  nations,  or  through  its  connection  with  the  general  govern- 
ment, by  treaty  stipulations. 

Our  civil  coui-ts  are  open  for  the  reclamation  of  property  which  may 
have  been  brought  within  our  jurisdiction,  in  violation  of  the  riglits  of 
the  owner ;  but  our  criminal  courts  have  no  jurisdiction  over  offences 
committed  against  the  sovereignty  of  foreign  and  independent  states.^ 

Judgment  reversed  and  cause  remanded. 

Day,  C.  J.,  Welch,  Stone,  and  White,  JJ.,  concurring. 

1  In  addition  to  the  cases  cited  in  this  opinion  see  the  following :  That  conviction 
may  not  be  had  when  the  property  was  first  taken  outside  the  jurisdiction,  Lee  v. 
State,  64  Ga.  203 ;  People  ^^  Loughridge,  1  Neb.  11.  That  conviction  may  be  had, 
Stinson  r.  People,  43  111.  397  ;  Worthington  v.  State,  58  Md.  403  ;  State  v.  Newman,  9 
Nev.  48 ;  State  v.  Hill,  19  S.  C.  435.     See  also  State  v.  Somerville,  21  Me.  14.  —  Ed. 


SECT.  III.]  REX   V.    RAVEN.  623 


SECTION   III. 

Taking  after  Delivery. 

(a)  Larceny  by  Bailee. 

1  Hawkins  Pleas  of  the  Crown  (7th  ed.,  1795),  209.  In  general, 
where  the  delivery  of  the  propert}^  is  made  for  a  certain,  special,  and 
particular  purpose,  the  possession  is  still  supposed  to  reside  unparted 
with  in  the  first  proprietor.  Therefore  .  .  .  if  a  watch-maker  steal  a 
watch  delivered  to  him  to  clean  (O.  B.  1779,  No.  83)  ;  or  if  one  steal 
clothes  delivered  for  the  purpose  of  being  washed  (O.  B.  1758,  No.  18)  ; 
or  goods  in  a  chest  delivered  with  the  key  for  safe  custody  (O.  B.  1779, 
Nc.  83)  ;  or  guineas  delivered  for  the  purpose  of  being  changed  into 
half-guineas  (Ann  Atkinson's  Case,  Leach  Crown  Cas,  247,  notes)  ;  or 
a  watch  delivered  for  the  purpose  of  being  pawned  (Leach  Crown  Cas. 
320)  ;  in  all  these  instances,  the  goods  taken  have  been  thought  to 
remain  in  the  possession  of  the  proprietor,  and  the  taking  of  them  away 
held  to  be  felony.^ 

REX  V.  RAVEN. 

Newgate  Sessions.     1662. 

[Reported  Kelynrj,  24.] 

Mary  Raven,  alias  Aston,  was  indicted  for  stealing  two  blankets, 
three  pair  of  slieets,  three  pillowbiers,  and  other  goods  of  William 
Cannon.  And  upon  the  evidence  it  appeared  that  she  had  hired  lodg- 
ings and  furniture  with  them  for  three  months,  and  during  that  time 
conveyed  away  the  goods  which  she  had  hired  with  her  lodgings,  and 
she  herself  ran  away  at  the  same  time.  And  it  was  agreed  by  my 
Lord  Bridgeman,  myself,  and  my  brother  Wylde,  Recorder  of  London, 
then  present,  that  this  was  no  felony,  because  she  had  a  special  prop- 
erty in  them  by  her  contract,  and  so  there  could  be  no  trespass  ;  and 
there  can  be  no  felony  where  there  is  no  trespass,  as  it  was  resolved  in 
the  case  of  Holmes,  who  set  fire  on  his  own  house  in  London,  which 
was  quenched  before  it  went  further. 

1  These  cases  were  first  cited  in  the  6th  edition  of  the  treatise  (1787)  in  the  notes 
and  were  brought  up  into  the  text  in  the  7th  edition.  The  citations  of  the  cases  are  all 
(with  perhaps  one  exception)  wrong,  and  it  is  difficult  to  identify  them.  The  first 
case  appears  to  be  Rex  v.  Vansas,  O.  B.  1779,  No.  88.  The  prisoner  was  journeyman 
to  a  watchmaker,  and  was  given  the  watch  by  him  to  repair,  and  pawned  it ;  in  his 
defence  he  said,  "  The  watch  was  given  into  my  care ;  I  appeal  to  your  Lordship  and 
the  jury  whether  this  is  stealing."  He  was  convicted.  The  second  case  cannot  be 
identified.  The  third  case  is  really  Rex  v.  More,  O.  B.  1758,  No.  18.  A  woman  who 
had  been  sent  to  prison  gave  the  key  of  her  chest  to  the  defendant,  who  stole  goods 
from  it ;  the  chest  was  apparently  left  in  the  prosecutor's  house.  Atkinson's  Case  was 
a  case  of  larceny  by  a  servant.  The  last  case  cannot  be  found  in  Leach,  but  is  Rex  v. 
Bradley,  O.  B.  1784,  No.  613.     It  is  a  case  of  larceny  by  trick.  —  Ed. 


624  REX    V.    BANKS.  [CHAi'.  Mil. 

LEIGH'S   CASE. 
Crown  Case  Reserved.     1800. 

[Reported  2  East  P.  C.  694.] 

Elizabeth  Leigh  was  indicled  at  Wells  assizes,  in  the  summer  of 
1800,  for  stealing  various  articles,  the  property  of  Abraham  Dyer.  It 
appeared  that  the  prosecutor's  house,  consisting  of  a  shop  containing 
muslin  and  other  articles  mentioned  in  the  indictment,  was  on  fire  ;  and 
that  his  neighbors  had  in  general  assisted  at  the  time  in  removing  his 
goods  and  stock  for  their  security.  The  prisoner  probablv  had  removed 
all  the  articles  which  she  was  charged  with  having  stolen  when  the 
prosecutor's  other  neighbors  were  thus  employed.  And  it  appeared 
that  she  removed  some  of  the  muslin  in  the  presence  of  the  prosecutor 
and  under  his  observation,  though  not  b}'  his  desire.  Upon  the  prose- 
cutor's applying  to  her  next  morning,  she  denied  that  she  had  any  of 
the  things  belonging  to  him  ;  whereupon  he  obtained  a  search  warrant, 
and  found  his  property  in  her  house,  most  of  the  articles  artfully-  con- 
cealed in  various  ways.  The  jury  found  her  guilty  ;  but  it  was  sug- 
gested that  she  originally  took  the  articles  with  an  honest  purpose,  as 
her  neighbors  had  done,  and  that  she  would  not  otherwise  have  taken 
some  of  them  in  the  presence  and  under  the  view  of  the  prosecutor ; 
and  that  therefore  the  case  did  not  amount  to  felon}'.  The  jury  were 
instructed  that  whether  she  took  them  originall}'  with  an  honest 
intent  was  a  question  of  fact  for  their  consideration  ;  that  it  did  not 
necessarily  follow  from  the  circumstances  mentioned  that  she  took 
them  with  an  honest  intent.  But  even  if  the}'  were  of  that  opinion, 
yet  that  her  afterwards  hiding  the  goods  in  the  various  ways  proved, 
and  denj'ing  that  she  had  them,  in  order  to  convert  them  to  her  own 
use,  would  still  support  the  indictment.  The  jury  found  her  guilty ; 
but  said  that,  in  their  opinion,  when  she  first  took  the  goods  from  the 
shop  she  had  no  evil  intention,  but  that  such  evil  intention  came  upon 
her  afterwards.  And  upon  reference  to  the  judges,  in  Michaelmas 
Term,  1800,  all  (absent,  Lawrence,  J.)  held  the  conviction  wrong  ;  for  if 
tlie  original  taking  were  not  with  intent  to  steal,  the  subsequent  con- 
version was  no  felony,  but  a  breach  of  trust. -^ 


REX  V.  BANKS. 

Crown  Case  Reserved.     1821. 

{Reported  Russell  ^  Ryan,  441.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Ba^'ley,  at 
the  Lancaster  Lent  Assizes,  in  the  year  1812,  for  horse-stealing. 

1  Ace.  Reg.  V.  Reeves,  .5  .lur.  N.  S.  716. —  Ed. 


SECT.  III.] 


REGINA   V.   THRISTLE. 


625 


It  appeared  that  the  prisoner  borrowed  a  horse,  under  pretence  of 
carrying  a  child  to  a  neighboring  surgeon.  Whether  he  carried  the 
cTiild  thither  did  not  api)ear ;  but  the  day  following,  after  the  purpose 
for  which  he  borrowed  the  horse  was  over,  he  took  the  horse  in  a 
different  direction  and  sold  it. 

"  The  prisoner  did  not  offer  the  horse  for  sale,  but  was  applied  to  to 
sell  it,  so  that  it  was  possible  he  might  have  had  no  felonious  intention 
till  that  application  was  made. 

The  jury  thought  the  prisoner  had  no  felonious  intention  when  he 
took  tlie  horse  ;  but  as  it  was  borrowed  for  a  special  pur})ose,  and  that 
purpose  was  over  when  the  prisoner  took  the  horse  to  the  place  where 
he  sold  it,  the  learned  judge  thought  it  right  upon  the  authority  of 
2  East  P.  C.  690,  694,  and  2  Russ.  1089,  1090,-  tc  submit  to  the  con- 
sideration of  the  judges  whether  the  subsequent  disposing  of  the  horse, 
when  the  purpose  for  which  it  was  borrowed  was  no  longer  in  view,  did 
not  in  law  include  in  it  a  felonious  taking. 

In  Easter  Term,  1821,  the  judges  met  and  considered  this  case. 
They  were  of  opinion  that  the  doctrine  laid  down  on  this  subject  in 
'2  East  P.  C.  690  &  694,  and  2  Russell  1089  &  1090,  was  not  correct. 
They  held  that  if  the  prisoner  had  not  a  felonious  intention  when  he 
originally  took  the  horse,  his  subsequent  withholding  and  disposing  of 
it  did  not  constitute  a  new  felonious  taking,  or  make  him  guilty  of 
felony  ;  consequently  the  conviction  could  not  be  supported. 


REGINA   V.  THRISTLE. 

Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  573.] 

The  two  following  cases  were  reserved  by  the  Worcestershire  Court 
of  Quarter  Sessions  :  — 

FIRST    CASE. 

The  prisoner,  William  Thristle,  was  indicted  at  the  Worcester  Quar- 
ter Sessions,  15th  October,  1849,  for  stealing  one  watch,  the  propert}* 
of  Robert  Warren. 

It  appeared  in  evidence  that  the  prosecutor,  in  1848,  met  the  pris- 
oner, who  was  a  watchmaker  at  Malvern.  The  prosecutor  asked  pris- 
oner if  he  was  going  as  far  as  prosecutor's  house  ;  the  prisoner  said 

1  In  2  Russ.  1089,  it  is  said  that,  "  In  the  case  of  a  delivery  of  a  horse  upon  hire  or 
loan,  if  such  delivery  were  obtained  bona  fide,  no  subsequent  wrongful  conversion 
pending  the  contract  will  amount  to  felony ;  and  so  of  other  goods.  But  when  the 
purpose  of  the  hiring  or  loan  for  which  the  delivery  was  made  has  been  ended, 
felony  may  be  committed  by  a  conversion  of  the  goods."  —  Rep. 


% 


L^ 


626  EEGINA   V.    THRISTLE.  [CHAP.  VIII. 

"yes,"  if  the  prosecutor  had  anything  for  him.  The  prosecutor  said 
his  watch  wanted  regulating,  if  prisoner  would  call. 

The  prisoner  went  to  the  prosecutor's  house,  and  after  examining 
the  watch,  told  the  prosecutor's  wife  that  he  could  do  nothing  with  it 
there,  but  must  take  it  to  his  own  house.  The  prisoner  tlien  took  it 
and  on  his  way  home  met  the  prosecutor,  to  whom  he  mentioned  that 
he  was  taking  the  watch  to  his  own  house  and  would  return  it  in  two 
or  three  days.     Prosecutor  made  no  objection. 

In  a  few  weeks  after,  prisoner  left  the  neighborhood  without  returning 
prosecutor's  watch,  and  it  was  not  afterwards  heard  of.  The  prisoner, 
on  being  taken  into  custody,  said,  "  I  have  disposed  of  the  property, 
and  it  is  impossible  to  get  it  back." 

The  jury  returned  a  verdict  of  guilty,  but  the  chairman  being  of 
opinion  that  there  was  no  evidence  of  a  felonious  taking  when  the 
prisoner  first  took  the  watch  from  the  prosecutor's  house,  with  the 
knowledge  and  in  the  presence  of  the  prosecutor's  wife,  and  entertain- 
ing doubt  whether  the  prisoner's  subsequent  appropriation  of  the  watch 
could  under  the  circumstances  above  detailed,  constitute  larceny,  re- 
quests the  opinion  of  this  court  as  to  the  correctness  of  the  conviction 
in  point  of  law. 

SECOND    CASE. 

The  same  prisoner  was  also  indicted  at  the  same  Sessions  for  steal- 
ing one  watch,  the  property  of  the  prosecutor,  Thomas  Reynolds.  It 
appeared  in  evidence  that  the  prisoner,  who  was  a  watchmaker  at  Mal- 
vern, received  from  the  prosecutor  some  time  in  January,  1848,  his 
silver  watch  to  repair.  The  prisoner  returned  it  to  the  prosecutor.  A 
few  days  after  the  prisoner  had  so  returned  it  the  prosecutor  told  the 
prisoner  that  the  watch  gained.  The  prisoner  said  that  if  the  prose- 
cutor would  let  him  have  it  again,  he  would  regulate  it  and  return  it 
in  a  day  or  two.  The  prosecutor  thereupon  gave  the  watch  to  the 
prisoner,  who  in  eight  or  nine  days  left  Malvern  with  the  prosecutor's 
watch  in  his  possession,  and  was  not  again  heard  of  until  he  was 
arrested  on  the  present  chai-ge  some  time  afterwards. 

The  prosecutor  was  unable  to  say  whether  he  had  paid  for  the  repairs 
of  his  watch  or  not,  but  stated  that  the  prisoner,  when  he  left  Malvern, 
had  other  repairs  of  the  prosecutor's  on  hand  and  unfinished. 

The  prisoner,  when  taken  into  custody,  said,  "I  have  disposed  of 
the  property,  and  it  is  impossible  to  get  it  back." 

The  jury  found  a  verdict  of  guilty,  but  the  chairman  being  of  opinion 
that  there  was  no  evidence  of  a  felonious  taking  on  the  part  of  the 
prisoner  when  he  received  the  watch  from  the  prosecutor  to  regulate 
it,  and  entertaining  a  doubt  whether  the  subsequent  departure  of  the 
prisoner  from  Malvern  with  the  prosecutor's  watch  in  his  possession 
could  under  the  circumstances  above  detailed,  constitute  larceny,  re- 
quests the  opinion  of  this  court,  as  in  the  former  case.^ 

1  The  statement  of  authorities  in  point  is  omitted. 


SECT.  III.]  KEGINA    V.    FKATT.  627 

Tliese  cases  were  not  argued  b}'  counsel  but  were  considered  by  the 
following  judges  :  Pollock,  C.  B.,  Fatteson,  J.,  Wightman,  J.,  Piatt,  B., 
and  Talfourd,  J. 

Pollock,  C.  B.,  delivered  the  judgment  of  the  court.  Tlie  indict- 
ment was  for  stealing  a  watch,  and  the  circumstances  set  out  in  the 
case  do  not,  on  the  question  of  fact,  justify  the  verdict  of  guilty  ;  but 
in  giving  our  judgment  that  the  conviction  is  wrong,  we  do  not  proceed 
merelv  upon  the  facts  stated.  The  question  put  to  us  in  the  conclusion 
of  the  case  seems  to  be  this  :  Tiie  chairman  doubted  whether  a  subse- 
quent appropriation  could  make  the  entire  transaction  a  larceny,  there 
not  having  been  at  the  time  of  the  taking  any  anitims  farandl ;  and 
I  think  we  are  bound  to  take  it  that  he  directed  tlie  jury  that  the 
subsequent  appropriation  might  render  the  transaction  larceny,  though 
there  was  not  any  intention  to  steal  at  tlie  time  of  the  taking  ;  and  in- 
deed, the  chairman's  opinion  seems  to  have  been  that  there  was  not 
the  animus furaiuU  at  the  time  of  the  taking;  and  the  question  is, 
whether  he  was  right  in  his  direction.  We  think  not,  for  unless  there 
was  a  taking  animo  furandi,  no  dishonest  appropriation  afterwards 
'^ould_]nake  it  larceny.  Conviction  reversed}  y 

^    ^  _____      '  '^.^■' 

^'p'y-      /{■■■'    i  i-f-^^"-^    REGINA   V.  PRATT. 

Crown  Case  Reserved.     1854. 

[Reported  6  Cox  C.  C.  373.] 

The  prisoner  was  tried  at  the  last  January  Sessions  for  the  borough 
of  Birmingham,  upon  a  charge  of  having  feloniously  stolen,  taken,  and 
carried  awaj'  on  the  18th  May,  in  the  16th  year  of  our  Sovereign  Lady 
the  Queen,  one  die  lathe,  the  goods  of  P^dvvard  Barker  and  another ; 
and  on  the  19th  May,  in  the  same  year,  ten  lathes,  the  property  of  the 
said  Edward  Barker  and  another,  the  goods  and  chattels  of  the  prose- 
cutors ;  and  was  found  guilty. 

The  prisoner  was  a  thimble-maker  and  manufacturer,  carrying  on  his 
business  in  two  mills,  one  a  thimble-mill  and  the  other  a  rolling-mill, 
in  the  borough  of  Birmingham  ;  and  before  the  occurrence  hereinafter 
mentioned  he  was  the  owner  and  proprietor  of  the  propertj'  mentioned 
in  the  indictment. 

On  the  14tli  of  Ma}',  1853,  the  prisoner,  being  in  pecuniary  difficul- 
ties, arranged  with  the  prosecutors,  Edward  Barker  and  William  Wayte, 
creditors  of  the  prisoner,  and  with  Mr.  Collis,  an  attorney-at-law  who 
acted  on  their  behalf,  to  execute  an  assignment  to  trustees  for  the 

1  Ace.  Reg.  V.  Reynolds,  2  Cox  C.  C.  170;  Reg.  v.  Hey,  3  Cox  C.  C.  .583  (overruling 
Reg.  V.  McNamee,  1  Moo.  C.  C.  368,  and  Reg.  u.  Jackson,  2  Moo.  C.  C  32) ;  State  v. 
England,  8  Jones,  399 ;  Hill  v.  State,  57  Wis.  377.  See  Murphy  v.  People,  104  111 
528,  and  causes  cited  (statutory).  —  Ed. 


628  EEGINA    V.    PRATT.  [CHAP.  VIII. 

benefit  of  his  creditors  ;  and  on  the  18th  of  Ma^-  a  deed  of  assignment 
was  executed  by  him,  whereby  the  prisoner  assigned  to  the  prosecutors, 
as  trustees  for  the  purposes  therein  mentioned,  certain  property  by  the 
description  following:  "all  and  every  the  engines,  lathes,  boilers,  fur- 
naces, horses,  carts,  machinery',  tools,  and  implements  of  trade,  the 
stock-in-trade,  goods,  wares,  merchandise,  household  furniture,  fixtures, 
plate,  linen,  china,  books  of  account,  debts,  sum  and  sums  of  moue}-, 
and  all  securities  for  mone}',  vouchers,  and  other  documents  and  writ- 
ings, and  all  other  the  personal  estate  and  effects  whatsoever  and 
wheresoever,  save  and  except  leasehold  estates  of  the  said  David  Pratt, 
in  possession,  reversion,  remainder,  or  expectanc}',  together  with  full 
and  free  possession,  right  and  title  of  entrv  in  and  to  all  and  every  of 
the  mills,  works,  messuages,  or  tenements  and  premises  wherein  the 
said  several  effects  and  premises  then  were :  to  have  and  to  hold  the 
said  engines,  and  other  the  premises,  unto  the  said  William  Barker 
and  William  Wayte,  their  executors,  administrators,  and  assigns, 
absolutely." 

The  deed  was  executed  by  the  prisoner  in  the  presence  of,  and  was 
attested  b}'  James  Rous,  who  was  a  clerk  of  Mr.  Collis,  and  who  was 
not  an  attorney  or  solicitor. 

On  the  29th  of  May  the  said  deed  was  again  executed  by  the  prisoner 
in  the  presence  of  the  said  Mi'.  Collis  and  in  all  respects  in  conformity 
with  the  provisions  of  the  68th  section  of  the  Bankrupt  Law  Consolida- 
tion Act,  1849,  with  the  view  of  preventing  the  deed  from  operating  as 
an  act  of  bankruptc}'.  The  deed  had  been  duly  stamped  on  its  first 
execution,  but  no  second  stamp  was  aflSxed  on  its  second  execution, 
which  omission  was  made  the  ground  of  objection  to  its  receipt  in  evi- 
dence. I  admitted  it,  however,  subject  to  the  opinion  of  this  honorable 
court,  which  I  directed  should  be  taken  if  it  became  necessar}-.  At  the 
time  of  the  first  interview  with  Mr.  Collis  on  the  14th  Ma}',  the  pris- 
oner said  he  had  stopped  work  altogether,  but  on  the  16th  it  was 
arranged  between  him  and  Mr.  Collis  that  the  rolling  business  should 
be  allowed  to  go  on  to  complete  some  unfinished  work.  Mr.  Collis 
then  told  him  to  keep  an  account  of  the  wages  of  the  men  employed  on 
the  rolling  work  and  to  bring  it  to  the  trustees.  This  the  prisoner  did, 
on  the  19th  May,  when  the  wages  were  paid  by  the  trustees  and  the 
rolling  business  finally  stopped. 

In  the  nights  of  Monday,  the  16th  Ma}',  and  of  every  other  day 
during  that  week,  the  prisoner  removed  property  conveyed  by  the  deed 
—  including  the  articles  mentioned  in  the  indictment  —  from  the  thimble 
and  rolling  mills  (some  of  the  heavier  machines  being  taken  to  pieces 
for  the  purpose  of  removal),  and  hid  them  in  the  cellar  and  other  parts 
of  the  house  of  one  of  his  workmen.  Some  time  afterwards,  and  after 
the  sale  by  the  trustees  of  the  remainder  of  the  property,  a  Mr.  Walker, 
who  had  been  a  large  purchaser  at  the  sale,  recommenced  the  business 
at  the  thimble  and  rolling  mills,  and  the  prisoner  acted  as  his  manager, 
when  the  property  which  formed  the  subject  of  the  indictment  was  by 
the  prisoner's  directions  brought  back  at  intervals  to  the  mills. 


SECT.  III.]  REGINA   V.    I'KATT.  629 

No  manual  possession  of  the  property  was  taken  by  the  prosecutors 
prior  to  its  removal  from  and  back  to  the  mills,  but  the  prisoner  re- 
mained in  possession  after  the  execution  of  the  deed,  in  the  same 
manner  as  before. 

I  asked  the  jury  three  questions  :  1st.  Did  the  prisoner  remove  tlie 
property  after  the  execution  of  the  deed  of  assignment?  2dly.  Did 
he  so  act  with  intent  fraudulently  to  deprive  the  parties  beneficially 
entitled  under  the  deed  of  the  goods?  3dly.  Was  he  at  the  time  of 
such  removal  in  the  care  of  and  custody  of  such  goods  as  the  agent  of 
the  trustees  under  the  deed? 

I  put  these  three  questions  to  tlie  jury  separately,  and  tliey  separatel}' 
answered  them  as  follows  :  1st.  He  did  remove  the  property  after  the  \ 
execution  of  the  assignment.  2dly.  He  did  so  remove  it  with  fraudu- 
lent intent.  And,  lastly,  he  was  not  in  the  care  and  custody  of  the 
goods  as  the  agent  of  the  trustees.  And  thereupon  (being  of  opinion 
that  the  two  affirmative  answers  would  support  a  conviction,  notwith- 
standing the  third  answer  in  the  negative),  I  directed  the  jury  to  find 
the  prisoner  guilty,  which  they  did. 

The  questions  for  the  opinion  of  the  court  are:  1st.  Whether  the 
deed  of  assignment  ought  to  have  been  received  in  evidence.  2d. 
Whether  my  direction  to  the  jury  was  correct.  And,  lastly,  whether 
the  conviction  is  valid. 

Bittleston  {Field  with  him),  for  the  prisoner.  The  conviction  is 
wrong.  1st.  The  prisoner  was  in  lawful  possession  of  the  goods,  and 
a  taking  by  him  did  not  constitute  larceny.  Furtum  non  est  ubl 
initiwn  habet  detentionis  per  dominum  rex.  The  trustees  had  not 
even  a  constructive  possession  for  this  purpose,  though  they  probably 
had  for  the  purpose  of  maintaining  a  civil  action  of  trespass  against 
a  third  person.  The  doctrine  of  constructive  possession  underwent 
consideration  in  R.  v.  Reed,  23  L.  J.  2.'),  M.  C,  where  a  servant  was 
sent  to  fetch  coals  ;  and  it  was  held  that  the  servant's  possession  was 
only  determined  when  he  had  placed  the  coals  in  his  master's  cart, 
which  was  the  same  thing  for  that  purpose  as  the  master's  warehouse. 
If  this  case  is  put  upon  the  ground  that  the  prisoner  was  a  bailee  and 
broke  bulk  the  jury  have  negatived  a  bailment.  2d.  Under  the  68th 
section  of  the  Bankrupt  Act,  the  re-execution  constituted  a  material 
alteration  of  the  deed,  which  therefore  required  to  be  restamped.  [Lord  • 
Campbell,  C.  J.  —  Was  not  the  re-execution  a  mere  nullity  ?]  Probably 
that  is  so. 

A.  Wills,  contra.  This  is  a  case  of  bailment.  The  trustees  per- 
mitted the  prisoner  to  continue  in  possession,  and  by  so  doing  consti- 
tuted him  a  bailee.  [Lord  Campbell,  C.  J.  —  The  jury  have  found  the 
contrary.]  They  have  only  found  that  he  was  not  their  agent ;  and 
there  is  a  distinction  between  an  agent  and  a  bailee. 

Lord  Campbell,  C.  J.  It  is  found  that  he  had  not  the  care  or  cus- 
tody of  the  goods  as  their  agent ;  and  that  clearly  negatives  a  bailment ; 
and  that  is  the  only  ground  upon  which  this  case  could  be  put.     The 


630  carrier's  case.  [chap.  viii. 

prisoner,  there foi'e,  was  in  lawful  possession  of  the  goods  and  cannot 
be  convicted  of  larceny. 

Aldekson,  B.     This  is  a  case  of  a  man  stealing  goods  out  of  his 
own  possession.  Conviction  quashed. 


SECTION  III.  (co7iH?iued). 
(6)  Larceny  by  Breaking  Bulk,  &c- 

CARRIER'S   CASE. 
Star  Chamber  and  Exchequer  Chamber.     1473. 

[Reported  Year  Book,  13  Ed.  IV.,  9, pi.  5].  1 

In  the  Star  Chamber  before  the  King's  Council  such  matter  was 
shown  and  debated :  where  one  has  bargained  with  another  to  carry 
certain  bales  with,  etc.,  and  other  things  to  Southampton,  he  took  them 
aiTd'carried  them  to  another  place  and  broke  up  {dehrusa)  the  bales 
and  took  the  goods  contained  therein  feloniously,  and  converted  them 
to  his  proper  use,  and  disposed  of  them  suspiciously  ;  if  that  maj-  be 
called  felony  or  not,  that  was  the  case. 

Brian,  C.  J.  I  think  not,  for  where  he  has  the  possession  from  the 
party  bj'  a  bailing  and  deliver}'  lawfully,  it  cannot  after  be  called  felony 
nor  trespass,  for  no  felony  can  be  but  with  violence  and  vi  et  armis,, 
and  what  he  himself  has  he  cannot  take  w'ith  vi  et  armis  nor  against  the 
peace ;  therefore  it  cannot  be  felony  nor  trespass,  for  he  ma}-  not  have 
any  other  action  of  these  goods  but  action  of  detinue. 

Hussey,  the  King's  Attorney.  Felony  is  to  claim  feloniously  the 
property  without  cause  to  the  intent  to  defraud  him  in  whom  the  prop- 
erty is.  animo  furandi,  a^id  here  notwithstanding  the  bailment  wf 
supra  the  property  remained  in  him  who  bailed  them,  then  this  property 
caiTbe  feloniously  claimed  by  him  to  whom  they  were  bailed  as  well  as 
by  a  stranger ;  therefore  it  may  be  felony  well  enough. 

The  Chancellor  [Booth].  Felony  is  according  to  the  intent,  and 
his  intent  may  be  felonious  as  well  here  as  if  he  had  not  the  possession 

IMiJieux,  ad  idern.  A  matter  lawfully  done  may  be  called  felony 
or  trespass,  according  to  the  intent ;  sc.  if  he  who  did  the  act  do  not 
pursue  the  cause  for  which  he  took  the  goods,  as  if  a  man  distrain  for 
damage  feasant  or  rent  in  arrear,  and  then  he  sell  the  goods  and  kill  the 
beasts,  this  is  tort  now  where  at  the  beginning  it  was  good.  So  if  a 
man  come  into  a  tavern  to  drink  it  is  lawful ;  but  if  he  carry  away  the 
piece  or  do  other  trespass,  then  all  is  bad.  So  although  the  taking  was 
lawful  in  the  carrier  ut  supra,  etc.,  yet  when  he   took  the  goods  to 

1  Translation  of  Pollock  and  Wright,  Possession,  p.  134. 


SECT.  III.]  CARUIEK'S    CASE.  631 

another  place  tit  supra  he  did  not  pursue  his  cause,  and  so  by  his  act 
after  it  may  be  called  felony  or  trespass,  according  to  the  intent. 

Brian,  C.  J.  Where  a  man  does  an  act  out  of  his  own  head,  it 
may  be  a  lawful  act  in  one  case  and  in  another  not,  according  to  his  act 
afterwards,  —  as  in  the  cases  which  you  have  put,  —  for  tliere  his  intent 
shall  be  judged  according  to  his  act ;  but  where  I  have  goods  by  your 
bailment,  tliis  taking  cannot  be  made  bad  after  b}'  anything. 

Vavisour.  Sir,  our  case  is  better  than  a  bailment,  for  here  the 
things  were  not  delivered  to  him,  but  a  bargain  that  he  should  carr}-  the 
goods  to  Southampton  ut  siipra^  and  then  if  he  took  them  to  carry 
them  tliither  he  took  them  warrantably  ;  and  the  case  put  now  upon  the 
matter  shows,  that  is,  his  demeanor  after  shows,  that  he  took  them  as 
felon  and  to  another  intent  than  to  carry  them,  ut  supra,  in  which  case 
he  took  them  without  warrant  or  cause,  for  that  he  did  not  pursue  the 
cause,  and  so  it  is  felon}-. 

Choke,  J.  I  think  that  where  a  man  has  goods  in  his  possession 
by  reason  of  a  bailment,  he  cannot  take  them  feloniously',  being  in  pos- 
session ;  but  still  it  seems  here  that  it  is  felony,  for  here  the  things 
which  were  within  the  bales  were  not  bailed  to  him,  —  o\\\y  the  bales  as 
an  entire  thing  were  bailed  ut  supra  to  carry,  —  in  which  case  if  he  had 
given  the  bales  or  sold  them,  etc.,  it  is  not  felony ;  but  when  he  broke 
them,  and  took  out  of  them  what  was  within,  he  did  that  without  war- 
rant, -;—  as  if  one  bailed  a  tun  of  wine  to  carry  ;  if  the  bailee  sell  the  tun 
it  is  not  felony  nor  trespass  ;  but  if  he  took  some  out  it  is  felon}- ;  and 
here  the  twent}'  pounds  were  not  bailed  to  him,  and  perad venture  he 
knew  not  of  them  at  the  time  of  the  bailment.  So  is  it  if  I  bail  the 
key  of  my  chamber  to  one  to  guard  m}-  chamber,  and  he  take  my 
goods  within  this  chamber,  it  is  felony  ;  for  they  were  not  bailed  to 
him. 

Jt  was  then  moved  that  the  case  ought  to  be  determined  at  common 
law.^  The  matter  was  afterwards  argued  before  the  judges  in  the 
Exchequer  Chamber. 

And  there  it  was  holden  b\-  all  but  Nedham,  J.,  that  where  goods 
are  bailed  to  a  man  he  canno^t  take  them  feloniously  ;  but  Nedham 
held  the  contrary,  for  he  might  take  them  feloniously  as  well'  as  an- 
other ;  and  he  said  it  had  been  held  that  a  man  can  take  his  own  goods 
feloniousl}-,  as  if  I  bail  goods  to  a  man  to  keep  and  I  come  privil}-  — 
intending  to  recover  damages  against  him  in  detinue  —  and  I  take  the 
goods  privily,  it  is  felon}-.  And  it  was  holden  that  where  a  man  has 
possession  and  that  determines,  he  can  then  be  felon  of  the  things,  as 
if  I  bail  goods  to  one  to  carry  to  my  house  and  he  bring  them  to  my 
house  and  then  take  them  thereout,  it  is  felony,  for  his  possession  is 
determined  when  they  were  in  my  house  ;  but  if  a  taverner  serve  a  man 
with  a  piece,  and  he  take  it  away,  it  is  felony,  for  he  had  not  possession 
of  this  piece,  for  it  was  put  on  the  table  but  to  serve  him  to  drink 

1  So  much  of  the  case  as  relates  to  this  motion  is  omitted. 


632  tunnard's  case.  [chap.  viii. 

And  so  is  it  of  my  butler  or  cook  in  m}'  house  ;  they  are  but  ministers 
to  serve  me,  and  if  they  carrj'  it  awa}'  it  is  felon}' ;  for  the}'  had  not 
possession,  but  the  possession  was  all  the  while  in  me  ;  but  otherwise 
peradventure  if  it  were  bailed  to  the  servants  so  that  the}'  are  in  pos- 
session of  it. 

Laicon,  J.  I  think  there  is  a  diversity  between  bailment  of  goods 
and  a  bargain  to  take  and  carry,  for  by  the  bailment  he  has  delivery  of 
possession  ;  but  by  the  bargain  he  has  no  possession  till  he  take  them, 
and  this  taking  is  lawful  if  he  takes  them  to  carry,  but  if  he  take  them 
to  another  intent  than  to  carry  them,  so  that  he  do  not  pursue  his  cause, 
I  think  that  shall  be  called  felony  well  enough. 

Brian,  C.  J.  I  think  that  it  is  all  one,  a  bargain  to  carry  them  and 
a  bailment,  for  in  both  cases  he  has  authority  of  the  same  person  in 
whom  the  property  was,  so  that  it  cannot  be  called  felony,  M.  "2  E. 
III.,  in  an  indictment  ^'feloiiice  abduxit  unmn  equuni''  is  bad,  but  it 
should  be  cepit ;  so  in  eyre  at  Nott.,  8  E.  III.  ;  and  in  this  case  the 
taking  cannot  be  feloniously,  for  that  he  had  the  lawful  possession  ;  so 
then  the  breaking  the  bales  is  not  felony,  vide  4  E.  II.  in  trespass,  for 
that  plaintiff  liad  bought  a  tun  of  wine  of  defendant,  and  Avhile  it  was  in 
defendant's  guard  defendant  came  with  force  and  arms  and  broke  the 
tun  and  carried  away  parcel  of  the  wine  and  filled  up  the  tun  with 
water. 

And  for  that  it  appeared  he  had  possession  before,  the  writ,  being 
vi  et  ar/nis,  was  challenged  ;  and  yet  it  was  held  well,  and  he  pleaded 
not  guilty,  and  then  the  justices  reported  to  the  Chancellor  in  Council 
that  the  opinion  of  the  most  of  them  was  that  it  was  felony.^ 


TUNNARD'S   CASE. 
Old  Bailey.     1729. 

[Reported  Leach  {4th  ed.)  214,  n.] 

John  Tunnard  was  tried  before  Lord  Chief  Justice  Raymond,  pres- 
ent Mr.  Baron  Hale  and  Mr.  Justice  Denton,  for  stealing  a  brown 
mare,  the  property  of  Henry  Smith.  It  appeared  in  evidence  the 
prosecutor  lived  in  the  Isle  of  Ely  ;  that  he  lent  the  prisoner  the  mare 
to  ride  to  a  place  three  miles  distant  ;  but  that  instead  of  riding  three 
miles  according  to  agreement  the  prisoner  I'ode  her  up  to  London,  and 
sold  her.  Lord  Chief  Justice  Raymond  left  it  with  the  jury  quo  animo 
he  had  ridden  the  mare  to  London,  and  they  found  him  guilty. 

The  Court.     The  finding  of  the  jury  will  make  this  case  felony  be- 

1  Ace.  State  v.  Fairclough,  29  Conn.  47  ;  Tlobinson  v.  State,  1  Coldw.  120.  See 
Kelyng,  82 ;  2  East  P.  C.  695  :  Chaplin  Crira.  Cas.  298 ;  6  Harv.  L.  Rev.  250.  —  Ed. 


SECT.  III.]  'REX   V.   MADOX.  633 

cause  he  rode  the  mare  fartlier  than  he  had  agreed  to  do  ;  for  if  there 
had  been  no  special  agreement  the  privity  would  have  remained,  and 
it  could  not  have  been  felony. 


REX  V.  MADOX. 
Crown  Case  Resekved.     1805. 

[Reported  Russell  ^  Ri/an,  301.] 

This  was  an  indictment  for  a  capital  offence  on  the  24  G.  11.  c.  45, 
tried  before  Mr.  Baron  Graham  at  the  summer  Assizes  at  Winchester, 
in  the  year  1805. 

The  first  count  was  for  stealing  at  West  Cowes  six  wooden  casks 
and  one  thousand  pounds'  weight  of  butter,  value  £20,  the  goods  of 
Richard  Bradley  and  Thomas  Clayton,  being  in  a  certain  vessel  called 
a  sloop  in  the  port  of  Cowes,  the  said  port  being  a  port  of  entry  and 
discharge,  against  the  statute.  The  second  count  was  for  grand  lar- 
ceny. The  third  count  was  like  the  first  except  as  to  the  property 
in  the  goods,  which  was  laid  in  one  Richard  Lashmore ;  and  the 
fourth  count  was  for  grand  larceny  of  the  goods  of  the  said  Richani 
Lashmore. 

The  butter  stolen  was  part  of  a  cargo  of  280  firkins  or  casks, 
shipped  at  Waterford,  in  Ireland,  on  board  a  sloop,  the  "  Benjamin," 
of  which  the  prisoner  was  master  and  owner,  bound  to  Shoreham  and 
Newhaven  in  Sussex,  —  two  hundred  and  thirty  of  the  casks  being 
consigned  to  Bradley  and  Clayton  at  Shoreham,  and  fifty  of  them  to 
Lashmore  at  Brighthelmstoue. 

It  appeared  that  the  ordinary  length  of  this  voyage,  with  fair  winds, 
was  a  week  or  nine  days,  but  in  winter  sometimes  a  month  or  five 
weeks.  In  the  present  instance  the  voyage  had  been  of  much  longer 
duration. 

The  vessel  first  touched  at  Sheepshead,  in  Ireland,  in  distress.  The 
prisoner  went  on  shore  at  Beerhaven,  where  he  signed  a  protest,  bear- 
ing date  on  the  20th  December,  1804.  From  thence  they  proceeded  to 
Lundy  Island  and  to  Tenby  in  Wales,  where  they  arrived  in  February, 
1805,  and  at  which  place  the  prisoner  went  on  shore  and  stayed  four 
or  five  weeks,  the  winds  being  foul.  From  thence  they  proceeded  to 
Scilly  and  then  to  Cowes,  where  they  arrived  on  the  last  day  of 
March  or  the  1st  of  April,  1805.  Cowes  was  in  their  course,  but  they 
had  previously  met  with  very  foul  weather  and  had  been  driven  to  the 
westward  of  Madeira,  during  which  time  the  vessel  had  been  often  in 
great  distress  ;  but  no  part  of  the  butter  had  at  any  time  been  thrown 
overboard.  Upon  the  arrival  at  Cowes  the  prisoner  went  on  shore 
and  shortly  afterwards  applied  to  one  Lallow,  a  sailmaker,  for  a  suit  of 


634  EEX    V.    MADOX.  LCHAP.  VIII. 

sails.  Lallow  went  aboard  the  vessel  and  took  measure  for  the  sails  ; 
and  after  his  return  to  Cowes  the  prisoner  called  upon  him  again  and 
bespoke  a  hammock,  and  then  stated  that  he  had  thirteen  casks  of 
butter  on  board  the  vessel,  belonging  to  himself,  and  requested  Lallow 
to  send  for  them  and  deposit  them  in  his  sail-loft  until  the  prisoner 
returned  from  Newhaven.  At  the  same  time  he  gave  Lallow  a  note 
or  order  for  the  mate  of  the  vessel,  by  which  the  mate  was  required 
to  deliver  thirteen  casks  of  butter  to  the  bearer.  Lallow  dispatched 
some  of  his  men  with  the  order  and  a  boat  to  the  vessel,  where  they 
arrived  in  the  night,  and  after  having  delivered  the  order  to  the  mate, 
received  from  him  seven  casks  of  butter  in  the  first  instance,  being  as 
much  as  the  boat  would  carry  ;  and  upon  their  return  to  the  vessel, 
during  the  night,  received  from  the  mate  the  otiier  six  casks.  The 
order  did  not  require  the  mate  to  deliver  any  particular  casks  ;  and  it 
appeared  by  the  evidence  of  the  mate  that  he  took  them  as  they  came 
to  hand.  The  casks  had  been  originally  stowed  in  the  hold  and  upon 
the  half-decks  as  they  came  on  board,  and  those  delivered  to  Lallow's 
men  were  taken  from  the  half-decks,  the  others  being  battened  down. 
The  seven  casks  first  delivered  by  the  mate  were  taken  to  Lallow's 
premises  and  deposited  there  ;  the  other  six  casks  were  seized  by  the 
custom-house  officers.  The  prisoner  was  at  Cowes  and  was  informed 
by  Lallow  of  the  seizure,  at  which  he  expressed  anger,  speaking  of  the 
seizure  as  a  robbery  and  of  the  casks  so  seized  as  his  own  property 
and  venture.  He  also  spoke  of  going  to  claim  his  property,  and  after- 
wards told  Lallow  that  he  would  give  him  an  order  to  claim  it,  as  he 
must  himself  go  away.  The  prisoner  afterwards  went  to  the  vessel 
and  passed  the  rest  of  the  night  on  board.  The  remainder  of  the 
cargo  was  delivered  at  Shoreham  and  Newhaven. 

The  protest  made  by  the  prisoner,  and  bearing  date  at  Beerhaven, 
the  20th  of  December,  1804,  purported,  among  other  things,  that 
the  prisoner  had  been  obliged  to  throw  overboard  several  casks  of 
butter ;  and  it  appeared  that  he  had  held  the  same  language  to  the 
consignees  as  his  excuse  for  delivering  short  of  their  respective 
consignments. 

Upon  this  case  the  counsel  for  the  prisoner  raised  two  objections : 
first,  that  no  larceny  had  been  committed  by  the  prisoner ;  and  sec- 
ondly, that  the  offence  was  not  capital,  —  the  larceny,  if  any,  being  of 
goods  in  his  own  vessel. 

LTpon  the  first  objection  it  seemed  to  be  admitted  that  if  the  mate, 
bythe  order  of  the  prisoner,  had  broken  bulk  by  taking  the  casks 
from  those  which  were  battened  down,  it  might  have  been  larceny  in 
the  prisoner ;  and  the  learned  judge  thought,  that  as  the  casks  were 
taken  from  the  half-deck,  where  they  were  originally  stowed,  there  was 
jip  material  difference.  It  was  then  contended  that  the  prisoner  went 
into  Cowes  without  any  necessity,  and  out  of  the  course  of  his  voyage  ; 
and  the  case  was  compared  to  those  wherein  it  had  been  held,  that  if 
goods   are  delivered  to  a  carrier  to  carry  to  a  certain  place,  and  he 


SECT.  III.]  REGINA   V.   POYSER.  y  635 

carries  them  elsewhere  and  embezzles  them,  it  is  no  felony.  1  Hale, 
504,  505  ;  2  East  P.  C.  693,  695,  696.  But  the  learned  judge  thought 
that  the  severance  of  a  part  from  the  rest,  and  the  formed  design  of 
doino-  so,  took  tlie  ease  out  of  those  authorities,  if  they  could  be  con- 
sidered as  applying  to  the  present  case. 

Upon  the  second  objection,  tliose  cases  were  cited  wherein  it  had 
been  held  tliat  the  12  Anne  St.  1,  c.  7,  against  larceny  in  a  dwelling- 
house,  to  the  value  of  forty  shilHngs,  does  not  extend  to  a  stealing  by 
a  man  in  his  own  house  (2  East  P.  C.  044)  ;  but  the  learned  judge 
thought,  that  though  this  might  be  the  law  as  to  a  person  stealing  the 
goods  of  another  under  tlie  protection  of  his  own  house,  yet  the  case 
of  a  man  stealing  the  goods  of  another  laden  on  board  his  own  vessel 
was  different,  as  in  such  case  the  vessel  for  the  voyage  might  be  con- 
sidered as  the  vessel  of  tlie  freighter ;  and  that  if  the  owner  should 
take  the  command  of  the  vessel,  the  stealing  the  goods  committed 
to  his  care  would  be  an  aggravation  of  his  offence.  And  he  further 
observed  that  the  words  and  occasion  of  the  two  statutes  would  admit 
of  a  distinction. 

The  whole  case  was  therefore  left  to  the  jury,  who  found  the  pris- 
oner guilty  ;  but  the  sentence  was  respited,  in  order  that  the  opinion  of 
the  judges  might  be  talcen. 

In  Michaelmas  term,  1805,  the  case  was  considered  by  the  judges, 
who  were  of  opinion  that  it  was  not  larceny  ;  and  that  if  it  were 
larceny,  it  would  not  have  amounted  to  a  capital  offence  within  the 
statute  24  G.  II.  c.  45. 


REGINA  V.  POYSER. 

Crown  Case  Reserved.     1851. 

[Reported  2  Denison  C.  C.  233.] 

The  prisoner  was  tried  before  Mr.  Baron  Alderson,  for  larceny,  at 
the  spring  Assizes,  a.  d.  1851,  for  the  county  of  Leicester.  It  ap- 
peared at  the  trial  that  the  prisoner  was  emploj'ed  by  the  prosecutor, 
who  was  a  tailor,  to  sell  clothes  for  him  about  the  country,  and  upon 
the  following  terms  :  The  prosecutor  fixed  the  price  of  each  article, 
and  the  prisoner  was  entrusted  to  sell  them  at  that  fixed  price,  and 
when  he  had  done  so  he  was  to  bring  back  the  money  and  the  re- 
mainder of  the  clothes  unsold,  and  was  to  have  three  shillings  in  the 
pound  on  the  moneys  received  for  his  ti'ouble.  On  the  12th  of  February 
last  he  took  away  a  parcel  of  clothes  upon  these  terms,  and  instead  of 
disposing  of  them  according  to  the  above  arrangement,  he  fraudulently 
pawned  a  portion  of  them  for  his  own  benefit,  and  having  so  done  he 
afterwards  fraudulently  appropriated  the  residue  to  his  own  use.  These 
facts  having  appeared,  the  learned  baron  directed  the  jury,  that  the 


V 


636  REGINA   V.    POYSER.  [CHAP.  VIII. 

original  bailment  of  the  goods  by  the  prosecutor  to  the  prisoner  was 
determined  by  his  unlawful  act  in  pawning  part  of  them,  and  that  the 
subsequent  fraudulent  appropriation  by  the  prisoner  of  the  residue  of 
the  goods  to  liis  own  use  would  in  point  of  law  amount  to  larceu}-. 
Upon  this  direction  the  prisoner  was  found  guilty,  and  the  question 
for  this  court  was,  whether  this  direction  was  right. 

On  the  26th  of  April  this  case  was  argued  by  O'Brien,  for  the 
prisoner. 

The  contract  witli  the  prisoner  was  distinct  and  separate  with  regard 
to  each  article  entrusted  to  him.  The  fact  of  his  receiving  all  the 
articles  at  one  time  was  a  mere  accident,  which  makes  no  legal  differ- 
ence in  the  case  ;  each  article  had  a  separate  price  affixed  to  it.  After 
he  had  pawned  some  of  the  articles,  when  was  the  original  bailment  of 
the  others  determined? 

Lord  Campbell.  The  case  states,  that  on  the  12th  of  February,  he 
took  away  a  parcel  of  clothes  ;  we  must,  therefore,  regard  the  delivery 
of  that  parcel  as  one  bailment  of  all  the  articles  contained  in  the 
parcel. 

O'Brien.  The  prisoner  had  authority  to  break  the  bulk  ;  the  con- 
tract imposed  on  him  the  necessity  of  opening  it  in  order  to  take  out 
each  article  and  deal  with  it  separately. 

Coleridge,  J.  Why  may  not  there  be  a  single  contract  embracing 
several  particulars,  as  for  instance,  where  a  carrier  is  entrusted  witli 
various  articles  to  leave  at  different  places,  all  of  which  articles  are 
placed  in  one  bag ;  if  he  wrongfully  deals  with  any  one,  is  it  not  a 
breaking  bulk  of  the  whole  ? 

O'Brien.  The  doctrine  of  breaking  bulk  turns  on  there  being  no 
authority  to  open  the  parcel  and  deal  with  any  one  of  the  articles 
separately  from  the  rest. 

Alderson,  B.  If  you  can  make  out  this  to  be  like  the  case  of  a 
carrier  entrusted  with  several  parcels  under  several  distinct  contracts, 
then  certainly  it  is  no  larceny. 

Lord  Campbell,  C.  J.  I  think  the  conviction  was  right.  The  case 
must  be  considered  as  though  it  was  a  single  bailment.  If  there  had 
been  several  bailments,  then  the  wrongful  dealing  with  one  of  the 
articles  so  bailed  would  not  affect  the  case  as  to  any  Other  article.  But 
it  makes  no  difference  that  in  one  parcel  there  were  several  articles. 
The  law  has  resorted  to  some  astuteness  to  get  rid  of  the  difficulties 
that  might  arise  in  the  case  of  a  wrongful  dealing  with  one  or  more  of 
several  articles,  all  of  which,  when  entrusted,  had  been  contained  in 
one  bulk. 

Alderson,  B.,  and  Platt,  B.,  concurred. 

Coleridge,  J.  The  fact  of  different  prices  being  affixed  to  each 
article  makes  no  difference  in  the  case. 


^ 


SECT.  III.]  COMMONWEALTH   V.    JAMES.  637 


COMMONWEALTH   v.   JAMES. 
Supreme  Judicial  Coukt  of  Massachusetts.     1823. 

[Reported  1  Pickerini/,  375.] 

An  iiulicLineiit  was  Ibuiid  in  this  case  us  follows :  ^  "  The  jurors, 
etc.,  present,  that  Noah  James,  of,  etc.,  iDiUer,  on,  etc.,  at  Boston  afore- 
said, with  force  and  arms,  three  tons  weight  of  barilla  of  the  value,  etc., 
of  the  goods  and  chattels  of  one  Thomas  Park,  in  his  possession  then 
and  there  being,  did  then  and  there  feloniously  steal,"  etc. 

The  prisoner  was  convicted  and  sentenced  at  the  Municipal  Court 
and  he  appealed  to  this  court. 

At  the  trial  in  November  term,  1822,  before  Parker,  C.  J.,  it  was 
m  evidence  that.  Park  having  a  quantity  of  barilla  which  he  wished  to 
have  ground,  sent  it  to  a  mill  kept  by  the  prisoner  for  grinding  plaster 
of  Paris,  barilla,  and  other  articles  ;  that  after  it  was  ground,  a  mixture 
consisting  of  three-fourth  parts  of  barilla  and  one-fourth  part  of  plaster 
of  Paris  was  returned  by  the  same  truckman  who  carried  the  barilla  to 
the  mill,  he  being  on  both  occasions  in  the  employment  of  Park. 

The  prisoner's  counsel  contended,  that  it  appearing  that  the  barilla 
was  sent  to  and  brought  from  the  mill  by  a  truckman,  who  for  aught 
appearing  in  the  case  was  alive  and  within  the  reach  of  the  process  of 
the  court  at  the  time  of  trial,  without  his  testimony  there  was  no  legal 
proof  that  the  barilla  was  ever  delivered  to  the  prisoner  or  the  mixture 
received  from  him.  But  there  being  evidence  that  the  barilla  was 
ground  at  the  prisoner's  mill,  by  his  order,  he  being  sometimes  present, 
and  a  bill  of  the  expense  of  grinding  having  been  made  out  and  pre- 
sented by  him,  and  the  mone_y  received  by  him,  there  being  also  evi- 
dence tending  strongly  to  show  that  he  had  practised  a  fraud  upon  the 
barilla,  the  objection  was  overruled  ;  and  whether  the  mixture  was 
accidental  or  fraudulent,  and  whether  it  was  caused  bv  the  prisoner  or 
not,  were  questions  left  to  the  jury  to  decide,  upon  a  great  deal  of  cir. 
cunistantial  evidence,  no  person  having  seen  him  do  it,  and  the  laborei 
who  had  the  immediate  charge  of  the  grinding  having  sworn  that  no 
mixture  was  made  except  what  was  accidental. 

It  was  likewise  contended,  that  supposing  the  facts  to  be  as  the  evi- 
dence on  the  part  of  the  government  tended  to  prove  them,  the  case 
made  out  was  not  larceny  but  only  a  breach  of  trust,  or  at  most  a  fraud, 
with  which  the  prisoner  was  not  charged  in  the  indictment.  On  this 
point  the  jury  were  instructed  that  if  they  were  satisfied  from  the  evi- 
dence that  the  prisoner  had  taken  from  the  parcel  of  barilla  any  quan- 
tity with  a  view  to  convert  it  to  his  own  use,  introducing  into  the  mass 
an  article  of  inferior  value  for  the  purpose  of  concealing  the  fraud,  he 
was  guilty  of  larceny. 

1  The  caption  of  the  indictment  is  omitted. 


638  COMMONWEALTH    V.    JAMES.  [CHAP.  VIII. 

The  juiy  having  found  a  verdict  against  the  prisoner,  he  moved  for  a 
new  trial  on  account  of  these  directions  of  the  judge, ^ 

Putnam,  J.,  deUvered  the  opinion  of  the  court. 

To  constitute  the  crime  of  larceny,  there  must  be  a  felonious  taking 
and  carrying  away  of  the  goods  of  another.  It  is  supposed  to  be  vi  et 
armis,  invito  domino.  But  actual  violence  is  not  necessary  ;  fraud 
ma}'  suppl}'  the  place  of  force. 

The  jur3'  have  found  that  the  defendant  took  the  goods  with  an  intent 
to  steal  them  ;  and  the  verdict  is  well  warranted,  if  at  the  time  tlie 
defendant  took  them,  the}'  were  not  lawfulh'  in  his  possession  with  the 
consent  of  the  owner,  according  to  a  subsisting  special  contract,  in  con- 
sequence of  an  original  deliver}^  obtained  without  fraud.  If  that  was 
the  case,  the  inference  which  the  counsel  for  the  defendant  draw  would 
follow,  that  such  a  taking  would  not  be  felon}'  but  a  mere  breach  of 
trust,  for  which  a  civil  action  would  lie,  but  concerning  wliich  the  pub- 
lic have  no  right  to  inquire  by  indictment. 

The  counsel  for  the  defendant  have  referred  us  to  13  Ed.  IV.,  fol.  9, 
as  the  authority  upon  this  point.     The  case  was  as  follows.^ 

1  have  been  thus  minute  in  examining  this  case,  as  it  is  referred  to  as 
the  foundation  upon  which  man}-  subsequent  decisions  rest.  It  will  be 
perceived  that  here  may  be  found  the  distinctions  which  are  recognized 
in  the  text  books  upon  this  subject.  .Thus,_if  the  party  obtain,  the 
delivery  of  the  goods  originally  without  an  intent  to  steal,  a  subsequent 
conversion  of  them  to  his  own  use  while  tlie  contract  subsisted  would 
not  be  felony  ;  but  if  the  original  intent  was  to  steal,  and  the  means 
used  to  obtain  the  delivery  were  merely  colorable,  a  taking  under  such 
circumstances  would  be  felony.  '  So  if  the  goods  were  delivered  origi- 
nally upon  a  special  contract,  which  is  determined  by  the  fraudulent 
act  of  him  to  whom  they  were  delivered,  or  by  the  completion  of  the 
contract,  a  taking  animo  furandi  afterwards  should  be  adjudged  to  be 
felony. 

In  the  application  of  these  general  rules  to  the  cases  which  arise,  it 
is  obvious  that  shades  of  difference,  like  the  colors  of  the  rainbow,  so 
nearly  approach  each  other  as  to  render  it  extremely  difficult  to  dis- 
criminate them  with  satisfactory  precision.  The  humane  rule  of  the 
law  is,  that  in  cases  of  doubt  the  inclination  should  be  in  favor  of  the 
defendant.  The  seeming,  perhaps  real,  contradictions  to  be  met  with 
in  the  English  decisions  may  have  been  influenced  by  the  desire  to  save 
human  life. 

The  case  of  Rex  v.  Channel,  2  Str.  793,  cited  for  the  defendant,  was 
an  indictment  against  a  miller  employed  to  grind  wheat,  stating  that 
he  with  force  and  arms  unlatofidly  did  take  and  detain  part  of  it. 
The  indictment  was  held  bad  upon  demurrer.  The  reasons  assigned  in 
the  book  are,  that  there  was  no  actual  force  laid  and  that  this  was  a 

1  Arguments  of  counsel  and  part  of  the  opinion  not  relating  to  the  question  of 
larceny,  have  been  omitted. 

2  The  learned  judge  here  stated  the  Carrier's  case,  supra. 


SECT.  III.]  COMMONWEALTH    V.    JAMES.  639 

matter  of  a  private  nature  ;  but  a  better  reason  seems  to  us  to  have 
been  that  there  was  no  averment  that  the  defendant  took  the  wheat 
J^elonioicsly. 

The  case  of  The  King  v.  Ha3'nes,  cited  for  the  defendant  from  4  M. 
&  S.  214,  was  an  indictment  for  a  fraud  against  a  miller  for  delivering 
oatmeal  and  barlej-  instead  of  wheat  which  was  sent  to  be  ground.  It 
is  not  for  a  felony.  The  court  thought  no  indictable  offence  was  set 
forth.  The  question  whether  if  the  miller  had  taken  any  of  the  corn, 
which  was  sent  to  be  ground,  ioith  an  intent  to  steal  it.  was  not  then 
under  consideration. 

In  the  case  at  bar,  the  goods  came  lawfull}-  into  the  hands  of  the 
defendant  by  the  delivery  of  the  owner.  If  he  is  to  be  convicted,  it 
must  be  on  the  ground  that  he  took  the  goods  as  a  felon  after  the  spe- 
cial contract  was  determined.^ 

In  Kelyng,  35,  a  silk  throwster  had  men  to  work  in  his  own  house, 
and  delivered  silk  to  one  of  them  to  work,  and  the  workman  stole  away 
part  of  it ;  and  it  was  held  to  be  felony  notwithstanding  the  deliver}'. 
East,  in  his  Crown  Law,  supposes  that  if  the  silk  had  been  delivered  to 
be  carried  to  the  house  of  the  workman,  and  he  had  there  converted  a 
part  of  it  to  his  own  use,  it  could  not  have  been  felony  ;  but  that  as  it 
was  to  be  worked  up  in  the  house  of  the  owner,  it  might  be  considered 
as  never  in  fact  out  of  his  possession.  But  Kelyng  seems  to  put  the 
case  upon  the  ground  of  the  special  contract,  "  that  the  silk  was  deliv- 
ered to  him  only  to  work,  and  so  the  entire  propert}-  remained  in  the 
owner." 

But  whatever  may  be  the  true  ground  of  decision  in  that  case,  there 
is  a  case  in  1  Roll.  Abr.  73,  pi.  16,  which  is  recognized  as  good  law  by 
Hawkins,  East,  and  other  waiters,  which  is  very  applicable  to  the  case 
at  bar.  "  If  a  man  sa3's  to  a  miller  who  keeps  a  corn  mill,  thou  hast 
stolen  three  pecks  of  meal,  an  action  lies  ;  for  although  the  corn  was 
delivered  to  him  to  grind,  nevertheless  if  he  steal  it,  it  is  felony,  being 
taken  from  the  rest."  Langley  v.  Bradshawe,  in  Ei-ror,  8  Car.  B.  R. 
That  decision  proceeded  upon  the  ground  of  a  determination  of  the 
privity  of  the  bailment.  Hawkins  observes  (bk.  i.  c.  33,  §  4)  that  such 
possession  of  a  part  distinct  from  the  whole  was  gained  by  wrong  and 
not  delivered  by  the  owner ;  and  also,  that  it  was  obtained  basely, 
fraudulently,  and  clandestinelv. 

This  remark  is  peculiarly  applicable  to  the  case  at  bar ;  for  there  is 
no  evidence  that  the  owner  intended  to  divest  himself  of  his  property 
by  the  delivering  of  it  to  the  defendant.  The  defendant  did  not  pursue 
the  purpose  for  which  it  was  delivered  to  him,  but  separated  a  part  from 
the  rest,  for  his  own  use,  without  pretence  of  title  ;  and  bj-  that  act  the 
contract  was  determined.  From  thenceforward  the  legal  possession 
was  in  the  owner,  and  a  taking  of  the  part  so  fraudulently  separated 
from  the  rest,  animo  furandi,  must  be  considered  as  larcen}-. 

^  The  learned  judge  here  stated  the  case  of  Rex  v.  Charlewood,  2  East  P.  C.  689.  — 
Ed. 


640  REX   V.    SHARPLESS.  [CHAP.  VIII. 

SECTION  IV. 

Taking  with  Consent. 

(a)  What  Constitutes  Consent. 

EEX  V.   SHARPLESS. 
Ckown  Case  Reserved.     1772. 

[Reported  Leach  (Ath  eel.),  92.] 

At  the  Old  Bailey  in  May  Session,  1772,  John  Sharpless  and  Samuel 
Greatrix  were  convicted  before  Mr.  Justice  Gould,  present  Mr.  Baron 
Adams,  of  stealing  six  pair  of  silk  stockings,  the  propert}'  of  Owen 
Hudson  ;  but  a  doubt  arising  whether  the  offence  was  not  rather  a 
fraud  than  a  felony,  the  judgment  was  respited,  and  the  question 
referred  to  the  consideration  of  the  judges  upon  the  following  case  : 

On  the  14th  March,  1772,  Samuel  Greatrix,  in  the  character  of 
servant  to  John  Sharpless,  left  a  note  at  the  shop  of  Mr.  Owen 
Hudson,  a  hosier  in  Bridge  Street,  Westminster,  desiring  that  he 
would  send  an  assortment  of  silk  stockings  to  his  master's  lodgings,  at 
the  Red  Lamp  in  Queen  Square.  The  hosier  took  a  variety  of  silk 
stockings  according  to  the  direction.  Greatrix  opened  the  door  to  him, 
and  introduced  him  into  a  parlor,  where  Sharpless  was  sitting  in  a 
dressing-gown,  his  hair  just  dressed,  and  rather  more  powder  all  over 
his  face  than  there  was  any  necessity  for.  Mr.  Hudson  unfolded  his 
wares,  and  Sharpless  looked  out  three  pair  of  colored  and  three  pair 
of  white  silk  stockings,  the  price  of  which,  Mr.  Hudson  told  him,  was 
14s.  a  pair.  Sharpless  then  desired  Hudson  to  fetch  some  silk  pieces 
for  breeches,  and  some  black  silk  stockings  with  French  clocks. 
Hudson  hung  the  six  pair  of  stockings  which  Sharpless  had  looked 
out,  on  the  back  of  a  chair,  and  went  home  for  the  other  goods  ;  but  no 
positive  agreement  had  taken  place  respecting  the  stockings.  During 
Hudson's  absence  Sharpless  and  Greatrix  decamped  with  the  six  pair 
of  stockings,  which  were  proved  to  have  been  afterwards  pawned  by 
Sliarpless  and  one  Dunbar,  an  accomplice  in  some  other  transactions 
of  the  same  kind,  for  which  the  prisoners  were  indicted. 

The  judges  were  of  opinion  that  the  conviction  was  right ;  for  the 
whole  of  the  prisoners'  conduct  manifested  an  original  and  preconcerted 
design  to  obtain  a  tortious  possession  of  the  property.  The  verdict  of 
the  jury  imports  that  in  their  belief  the  evil  intention  preceded  the 
leaving  of  the  goods  ;  but,  independent  of  their  verdict,  there  does  not 
appear  a  sufficient  delivery  to  change  the  possession  of  the  property.^ 

1  Ace.  U.  S.  V.  Rodgers,  1  Mack.  419.  —  Ed. 


SECT.  IV.]  REGINA   V.   EDWARDS.  j       fi41 

I 


REGINA   V.   LOVELL. 
Crown  Case  Reserved.     1881.  y 

[Reported  8  Queen's  Bench  Division,  185.] 

The  following  case  was  stated  for  the  opinion  of  this  court  b}-  the 
Chairman  of  the  Worcestersliire  Quarter  Sessions  :  — 

The  prisoner  was  tried  before  me  at  the  last  Worcestershire  Quarter 
Sessions  on  an  indictment  which  charged  him  in  the  first  count  with 
stealing  the  sum  of  os.  6d.,  the  property  of  P^liza  Grigg,  and  in  the 
second  count  with  demanding  with  menaces  from  the  said  Eliza  Grio-o- 
the  sura  of  5s.  6d.  with  intent  to  steal  the  same.  The  facts  were  these  : 
The  prisoner  was  a  travelling  grinder.  He  ground  two  pairs  of  scis- 
sors for  the  prosecutrix,  for  which  he  charged  her  fourpence.  She  then 
handed  him  six  knives  to  grind.  He  ground  them  and  demanded 
5s.  6d.  for  the  work.  She  refused  to  pa}'  the  amount  on  the  ground 
that  the  charge  was  excessive.  The  prisoner  then  assumed  a  menacing 
attitude,  kneeling  on  one  knee,  and  threatened  prosecutrix,  saving, 
''You  had  better  pay  me,  or  it  will  be  worse  for  you,"  and  "  I  will 
make  you  pay."  The  prosecutrix  was  frightened  and  in  consequence 
of  her  fears  gave  the  prisoner  the  sum  demanded.  Evidence  was  given 
that  the  trade  charge  for  grinding  the  six  knives  would  be  Is.  3d. 

It  was  contended  for  the  prisoner  that  as  some  money  was  due,  the 
question  rested  simply  on  a  quantum  tneruit^  and  that  there  was  no 
larceny  or  menacing  demand  with  intent  to  steal. 

I  overruled  the  objection  and  directed  the  jury  on  the  authority  of 
Regina  v.  M'Grath,  Law  Rep.  1  C.  C.  R.  205,  that  if  the  money  was 
obtained  by  frightening  the  owner,  the  prisoner  was  guilty  of  larceny. 

The  jury  found  that  the  money  was  obtained  from  the  prosecutrix  by 
menaces  and  that  the  prisoner  was  guilt}'. 

I  reserved  for  the  consideration  of  this  court  the  question  whether 
upon  the  facts  stated  he  was  properly  convicted. 

Per  Curiam.  The  conviction  in  this  case  was  right.  Regina  v. 
M'Grath  is  conclusive  of  the  matter.^ 


REGINA  V.   EDWARDS. 
Crown  Case  Reserved.     1877. 

[Reported  13  Cox  C.  C.  384.] 

The  prisoners  were  tried  at  the  West  Kent  Quarter  Sessions,  held  at 
Maidstone,  on  the  5th  of  January,   1877,  on  an   indictment   charging 

1  Ace.  Reg.  V.  MacGrath,  11  Cox  C.  C.  347;  Reg.  v.  Plazell,  11  Cox   C.  C.  597; 
State  V.  Bryant,  74  N.  C.  124.     See  U.  S.  v.  Murphy,  McA.  &  M.  375.  —Ed. 


642  EEGINA   V.   EDWARDS.  [CHAP.  VIII. 

them  with  stealing  three  dead  pigs,  the  property  of  Sir  William  Hart 
Dj'ke,  Bart. 

The  evidence  was  to  the  following  effect :  The  three  pigs  in  question 
having  been  bitten  by  a  mad  dog,  Sir  William  Hart  Dyke,  to  whom 
they  belonged,  directed  his  steward  to  shoot  them.  The  steward 
thereupon  shot  them  each  through  the  head  and  ordered  a  man  named 
Paylis  to  bury  them  behind  the  barn.  The  steward  stated  that  he  had 
no  intention  of  digging  them  up  again  or  of  making  an}-  use  of  them. 
Paylis  buried  the  pigs,  pursuant  to  directions,  behind  the  barn  on  land 
belonging  to  Sir  William  Hart  Dyke,  in  a  place  where  a  brake-stack 
is  usuall}'  placed.  The  hole  in  which  the  pigs  were  buried  was  three 
feet  or  more  deep,  and  the  soil  was  trodden  in  over  them. 

The  prisoner  Edwards  was  employed  to  help  Paylis  to  bur}-  the  pigs. 
Edwards  was  seen  to  be  covering  the  pigs  with  brakes,  and  in  answer 
to  Paylis's  question  why  he  did  so,  said  that  it  would  keep  the  water 
out,   and  it  was  as  well  to  bury  them  "  clean  and  decent." 

The  two  prisoners  went  the  same  evening  and  dug  up  the  pigs,  and 
took  them  to  the  railwa}-  station,  covered  up  in  sacking,  with  a  state- 
ment that  the}'  were  three  sheep,  and  sent  them  off  for  sale  to  a  sales- 
man in  the  London  Meat  Market,  where  they  were  sold  for  £9  3s.  9f/., 
which  was  paid  to  the  prisoners  for  them. 

The  counsel  for  the  prisoners  submitted  that  there  was  no  evidence 
in  support  of  the  charge  to  go  to  the  jur}-,  on  the  following  grounds  : 
firstly,  that  the  property  was  not  proved  as  laid  in  the  indictment,  as 
Sir  William  Hart  Dyke  had  abandoned  his  property-  in  the  pigs ; 
secondly,  that  under  the  circumstances  the  buried  pigs  were  of  no 
value  to  the  prosecutor ;  an  1,  thirdl}*,  that  under  the  circumstances 
the  buried  pigs  were  attached  to  the  soil,  and  could  not  be  the  subject 
of  larceny. 

The  Chairman,  however,  thought  that  the  case  was  one  for  the  jury, 
and  directed  them,  as  to  the  first  point,  that  in  his  opinion  there  liad 
been  no  abandonment,  as  Sir  William's  intention  was  to  prevent  the. 
pigs  being  made  any  use  of;  but  that  if  the  jury  were  of  opinion  that 
Ke  had  abandoned  the  property  thej'  should  acquit  the  prisoners.  He 
also  told  the  jury  that  he  thought  there  was  nothing  in  the  other  two 
objections. 

The  jur}'  found  the  prisoners  guilt}'. 

The  question  for  the  consideration  of  the  court  is  whether,  having 
reference  to  the  objections  taken  by  prisoners'  counsel,  there  was  evi- 
dence on  which  the  jury  were  justified  is  convicting  the  prisoners  of 
larceny. 

If  the  answer  to  this  question  be  in  the  negative,  then  the  conviction 
to  be  quashed,  otherwise  affirmed. 

No  counsel  appeared  to  argue  on  either  side. 

By  the  Court  :  Conviction  affirmed. 


SECT.  IV.]  KEGINA   V.   HANDS.  .  643 


REGINA  V.   HANDS. 

Crown  Cask  Kkseuved.     1887. 

[Reported  16  Car  C.  C.  188.] 

Case  reserved  by  the  Quarter  Sessions  for  the  County  of  Gloueestei 
as  follows  :  — 

Prisoners  Hands  and  Plielps  were  severally  indieted  for  that  on  the 
29th  day  of  November,  1886,  they  did  feloniously  steal,  take,  and  carry 
away  one  cigarette,  of  the  goods  and  chattels  of  Edward  Shenton, 
against  the  peace  of  our  said  Lad}-  the  Queen. 

Prisoner  Jenner  was  indicted  for  an  attempt  to  steal,  etc. 
Prisoners  Jenner  and  Plielps  pleaded  guilty. 

Prisoner  Henry  Hands  pleaded  not  guilty  and  was  given  in  charge  to 
the  jury. 

This  is  a  case  of  larcen}-  from  what  is  known  as  an  "  automatic  box," 
and  the  circumstances  are  as  follows  :  — 

Mr.  Edward  Shenton  is  the  lessee  of  the  Assemblj'  Pooms  at  Chel- 
tenham, and  has  fixed  against  the  wall  of  the  passage  leading  from  the 
High  Street  to  the  rooms  an  "  automatic  box." 

This  box  presents  the  appearance  of  a  cube  of  about  eight  or  ten 
inches,  and  in  the  upper  right-hand  corner  (facing  the  operator)  of  the 
front  face  there  is  a  horizontal  slit,  or  opening,  of  sufficient  size  to  admit 
a  penn}'  piece. 

In  the  centre  of  the  face  is  a  projecting  button  or  knob  about  the 
size  of  a  shilling. 

In  the  lower  left-hand  corner  is  a  horizontal  slit,  or  opening,  of  suffi- 
cient size  to  allows  of  the  exit  of  a  cigarette. 

There  is  an  inscription  on  the  face  of  the  box:  "  Only  pennies,  not 
halfpennies." 

Also:  "To  obtain  an  Egyptain  Beauties  cigarette,  place  a  penny  in 
the  box  and  push  the  knob  as  far  as  it  will  go." 

If  these  directions  are  followed  a  cigarette  will  be  ejected  from  the 
lower  slit  on  to  a  -bracket  placed  to  receive  it. 

The  box  is  the  property  of  the  Automatic  Box  Company.  The  cig- 
arettes with  which  it  was  charged  belonged  to  Mr.  Shenton. 

For  some  time  past  Mr.  Shenton  has  found  on  clearing  the  box, 
which  he  did  once  or  twice  a  day,  that  a  large  number  of  metal  disks 
(brass  and  lead)  of  the  size  and  shape  of  a  penny  had  been  put  in,  and 
a  correspond! ug  number  of  cigarettes  had  been  taken  out. 

In  consequence  of  this  discovery  a  watch  was  set  upon  the  box,  and 
upon  the  day  named  in  the  indictment,  the  box  having  been  pi-eviously 
cleared,  two  gentlemen  were  seen  to  go  to  it ;  each  put  something  in 
and  each  took  a  cigarette  as  it  appeared. 


\ 


644  EEGINA  V.   HANDS.  [CHAP.  VIII. 

The  box  was  then  examined  and  found  to  contain  one  English  penny 
and  one  French  penn}-.  These  coins  were  left  in.  The  box  was  locked 
and  the  watch  was  again  set. 

Shortly  after  this,  three  lads  (afterwards  proved  to  be  the  three  pris- 
oners) were  seen  to  come  to  the  entrance  of  the  passage.  One  of  them 
came  in,  went  to  the  box,  put  something  in,  obtained  a  cigarette,  and 
then  rejoined  the  other  two  at  the  entrance.  This  was  repeated  a 
second  time.  The  third  time  it  was  observed  that  the  box  would  not 
ivork,  and  while  the  lad,  who  afterwards  was  found  to  be  the  prisoner 
•■^enner,  was  pushing  at  the  knob  the  watchman  came  from  his  place  of 
ojoncealment  and  put  his  hand  upon  him. 

The  box  was  then  opened  and  a  piece  of  lead  was  discovered  stuck 
^n  the  "  valve,"  which  had  the  effect  of  preventing  the  machinery  of  the 
box  from  working. 

It  was  then  found  that  the  box  contained  (besides  the  English  and 
French  pennies  alread}-  mentioned)  two  disks  of  brass  about  the  size 
and  shape  of  a  penu}-. 

No  other  coin  or  metal  piece  was  found  in  the  box,  and  no  one  (but 
Mie  three  lads  as  above  mentioned)  had  approached  it  after  the  two 
gentlemen  who  had  put  in  the  English  and  French  pennies. 

The  prisoner  Jenner  was  given  in  charge  to  the  police,  and  the  two 
*)ther  prisoners  were  subsequently  apprehended. 

Upon  being  brought  together  at  the  police  station  the  prisoners  all 
made  statements  more  or  less  implicating  themselves  and  each  other. 

The  prisoner  Hands  said:  "Me  and  Jenner  met  Phelps  about  7.45 
^.  M.  Phelps  said  :  '  I  want  to  go  to  Dodwell's.'  I  did  not  go-  and  we 
went  down  into  the  High  Street.  Phelps  and  Jenner  stopped  by  the 
Assembly  Rooms  and  went  in  ;  I  remained  outside.  I  believe  Jenner 
was  caught  at  the  box.  Mr.  Shenton's  man  took  him  inside.  I  after- 
wards put  a  penny  in  the  box  and  had  a  cigarette  myself.  The  pieces 
of  brass  produced  are  cut  in  our  shop,  the  blacksmith's  shop  at  Mr. 
Marshall's." 

In  leaving  the  case  to  the  jury  the  learned  chairman  told  them  that 
they  would  have  to  consider :  First,  was  there  a  theft  committed  ;  that 
is,  was  Mr.  Shenton  unlawfully  deprived  of  his  property  withont  his 
knowledge  or  consent?  Secondly,  if  that  were  so,  were  they  satisfied 
that  the  prisoner  (Hands)  took  any  part  in  the  robbery?  He  also  told 
them  that  if  they  thought  that  the  prisoner  was  one  of  the  three  lads 
who  came  to  the  entrance  of  the  passage,  and  that  he  was  there  with  the 
others  for  the  common  purpose  of  unlawfully  taking  the  cigarettes  from 
the  box  ;  or  that  he  afterwards  partook  of  the  proceeds  of  the  robber}' ; 
or  that  he  had  taken  a  part  in  making  the  disks,  knowing  for  what 
purpose  they  were  to  be  used,  —  that  they  would  be  justified  in  find- 
ing liim  guilt}'  although  he  might  not  actually  have  put  the  disks  into 
the  box  or  have  taken  out  a  cigarette. 

The  jnr}'  found  the  prisoner  (Hands)  guilt}-,  and  upon  motion  in  ar- 
rest of  judgment  on  tlie  ground  that  "  the  facts  as  disclosed  by  the  evi- 


SECT.  IV.]  MITCHUM   V.    STATE.  645 

dence  were  not  sufficient  to  constitute  a  larceny,"  all  the  prisoners  were 
allowed  to  stand  out  on  bail  until  the  next  Quarter  Sessions. 

The  question  for  the  court  was  whether  the  facts  as  disclosed  bj-  the 
evidence  were  sutticient  to  constitute  a  larceny. 

No  one  appeared  on  either  side.  _ 

Lord  Coleridge,  C.  J.  In  this  case  a  person  was  indicted  for  com-N 
mitting  a  larcen}*  from  what  is  known  as  an  "  automatic  box,"  which 
was  so  constructed  that  if  you  put  a  penn^' into  it  and  pushed  a  knob 
in  accordance  with  the  directions  on  the  box  a  cigarette  was  ejected  on 
to  a  bracket  and  presented  to  the  giver  of  the  penny.  Under  these 
circumstances  there  is  no  doubt  that  the  prisoners  put  in  the  box  a 
piece  of  metal  which  was  of  no  value,  but  which  produced  the  same 
effect  as  the  placing  a  penny  in  the  box  produced.  A  cigarette  was  "^ 
ejected,  which  the  prisoners  appropriated  ;  and  in  a  case  of  that  class  ' 
it  appears  to  me  there  clearly  was  larceny.  The  means  by  which  the 
cigarette  was  made  to  come  out  of  the  box  were  fraudulent  and  the 
cigarette  so  made  to  come  out  was  appropriated.  It  is  perhaps  as  well 
to  say  that  the  learned  chairman  somewhat  improperly  left  the  question 
to  the  jurj'.  He  told  them  that  if  they  thought  that  the  prisoner  Hands 
was  one  of  the  three  lads  who  came  to  the  entrance  of  the  passage  and 
that  he  was  there  with  the  others  for  the  common  purpose  of  unlawfully 
taking  the  cigarettes  from  the  box,  or  that  he  afterwards  partook  of  the 
proceeds  of  the  robber}',  the}'  would  be  justified  in  finding  him  guilty, 
—  he  did  not  say  larcenously  or  feloniously;  and  he  further  directed 
them  that  if  they  thought  the  prisoner  had  taken  a  part  in  making  the 
disks,  knowing  for  what  purpose  they  were  to  be  used,  they  would  be 
justified  in  finding  him  guilty  although  he  might  not  actually  have  put 
the  disks  into  the  box  or  have  taken  out  a  cigarette.  Now  I  am  not 
quite  sure  that  simply  the  fact  of  doing  an  unlawful  thing,  as  joining  in 
the  manufacture  of  a  disk  that  some  one  else  was  to  use,  would  make 
him  guilty  of  larceny.  He  might  be  guilty  of  something  else,  but  I 
doubt  very  much  whether  he  could  be  convicted  of  larceny.  As  upon 
the  facts  of  the  case,  however,  I  do  not  think  that  the  jury  could  have 
been  misled,  and  as  upon  the  facts  there  was  undoubtedly  a  larceny 
committed,  I  am  not  disposed  to  set  aside  the  conviction. 

Pollock,  B.,  Stephen,  Mathew,  and  Wills,  JJ.,  concurred. 

Conmction  affirmed^ 


MITCHUM   V.    STATE. 
Supreme  Court  of  Alabama.     1871. 

[Reported  45  Alabama,  29.] 

Appeal  from  Circuit  Court  of  Shelby.  Tried  before  Hon.  Charles 
Pelhara.  The  facts  material  to  the  point  decided  will  be  found  in  the 
opinion. 


646  MITCHUM    V.    STATE.  fCHAP.  VIII. 

Cobb  &  Lewis,  for  appellant.  The  testimony  shows  that  the 
matches  were  placed  upon  the  counter  for  the  use  of  the  public,  and 
the  accommodation  of  the  public,  that  any  and  every  person  had  the 
right  to  take  the  matches  without  limit,  to  light  their  pipes  and  cigars. 
The  defendant  certainly  had  the  right  to  take  the  matches  to  light  his 
pipe  or  cigar,  and  he  had  the  right  to  use  the  entire  box  in  this  way. 
The  fact  that  he  may  have  used  them  for  a  different  purpose  would  not 
make  the  taking  felonious.  There  can  be  no  larceny  where  the  owner 
consents  to  the  taking.  The  taking  must  be  without  authority  and 
against  the  will  of  the  owner.  If  the  taking  is  not  felonious,  although 
the  property  may  be  converted  to  an  improper  use,  yet  the  defendant 
is  not  guilt}'  of  larceny. 

JoJm  W.  A.  Scmford,  Attorney  General,  contra. 

Saffold,  J.  The  defendant  was  indicted  for  petit  larceny-  On 
the  trial  the  evidence  material  to  the  exception  taken  by  him  was  that 
the  box  of  matches,  the  subject  of  the  larceny,  was  placed  on  the 
counter  of  the  store,  to  be  used  by  the  public  in  lighting  their  pipes  and 
cigars  in  the  room,  and  for  their  accommodation,  and  was  taken  there- 
from by  the  defendant.  The  court  was  requested  by  the  prisoner  to 
charge  the  jury  that  if  the  matches  were  placed  on  the  counter  of  the 
store-house  for  the  use  of  customers,  or  the  public,  and  they  were 
taken  while  there  for  such  use,  the  defendant  was  not  guilty.  The 
charge  was  refused,  and  the  defendant  excepted. 

Larceny  may  be  committed  of  property  under  the  circumstances 
attached  to  the  box  of  matches.  The  owner  had  not  abandoned  his 
right  to  them.  They  could  only  be  appropriated  in  a  particular  manner 
and  in  a  very  limited  quantity  with  his  consent.  Taking  them  by  the 
T)oxful  without  felonious  intent  would  have  been  a  trespass,  and  with 
i^  a  larceny.  The  ownership  was  sufficiently  proved. 
The  judgment  is  affi^'med. 


SECT.  IV.]  REX  V.   PEAR.  647 


SECTION   IV  {coyUinued). 

Taking  with   Consetit. 

(h)  Larceny  by  Trick. 

REX  V.  PEAR. 

Crown  Case  Reserved.     1779. 

\^Reported  2  East  P.  C.  685.] 

John  Pear  was  indicted  for  stealing  a  black  mare,  the  property  of 
Samuel  Finch.  On  the  2d  Jul}-,  1779,  the  prisoner  hired  the  mare  of 
Finch,  who  lived  in  London,  for  that  day,  in  order  to  go  to  Sutton  in 
Surrey,  and  told  him  that  he  should  return  at  eight  o'clock  the  same 
evening.  Finch,  before  he  let  the  prisoner  the  mare,  inquired  of  him 
where  he  lived,  and  whether  he  were  a  housekeeper ;  to  which  he 
a'iiswered,  that  he  lived  at  No.  25  in  King  Street,  and  was  only  a  lodger. 
The  prisoner  not  returning  as  he  had  promised,  the  prosecutor  went 
the  next  day  to  inquire  for  him  according  to  the  direction  he  had  given  ; 
but  no  such  person  was  to  be  found.  It  turned  out  that  the  prisoner 
had  in  the  afternoon  of  the  same  2d  of  July  sold  the  mare  in  Smithfield. 
In  summing  np  this  evidence  to  the  jury,  Mr.  Justice  Ashhurst,  who 
tried  the  prisoner,  told  them  that  if  they  were  of  opinion  that  the  pris- 
oner hired  the  mare  with  an  intent  of  taking  the  journey  mentioned, 
and  afterwards  changed  that  intention,  then  as  she  was  sold  whilst  the 
privity  of  contract  subsisted,  they  ought  to  acquit  the  prisoner.  But 
ifM;he3'  were  of  opinion  that  the  journey  was  a  mere  pretence  to  get  the 
mare  into  his  possession,  and  that  he  hired  her  with  an  intention  of 
stealing  her,  they  ought  to  find  him  guilty :  and  he  would  save  the 
point  for  the  opinion  of  the  iudges.  The  jury  found  the  prisoner  guilty. 
This  case  underwent  a  great  deal  of  discussion,  and  the  judges  delivered 
their  opinion  seriatim  upon  it,  on  the  4th  February,  1780,  at  Lord  C. 
J.  De  Grey's  house  ;  and  on  the  2i^d  of  the  same  month  — 

INIr.  Baron  Perryn  delivered  their  opinion  at  the  O.  B.  as  follows  :  * 
(After  stating  the  indictment,  evidence,  and  finding  of  the  jury  as  above 

1  Arc.  Com.  v.  Brown.  4  Mass.  580:  Nichols  v.  People,  17  N.  Y.  114. —  Ed. 

2  This  judgmeut  was  settled  and  approved  by  several  of  the  judges  before  it  was 
delivered.     (East's  note.") 


648  KEX   V.   PEIR.  [chap.  VIII. 

stated.)  This  case  has  been  maturely  considered  by  all  the  judges, 
and  eleven  ^  of  them,  who  met  for  the  purpose,  delivered  their  opinions 
at  large  upon  the  subject :  seven  of  them  held  the  offence  to  be  a  clear 
felony  ;  two  of  them  were  of  opinion  that  it  was  not  felony  ;  and  the 
other  two  entertained  great  doubts  at  the  last;  which  doubts  were 
founded  upon  two  statutes  which  he  should  take  notice  of.  Three  out 
of  the  four  dissenting  judges  agreed  with  the  seven,  that  by  the  princi- 
ples of  the  common  law  this  was  felony.  But  the  doubts  and  opinions 
of  those  four  judges  were  founded  chiefly  on  the  statutes  33  H.  8  and  30 
G.  2,  against  obtaining  goods  by  false  tokens  or  false  pretences.  Two 
of  the  fudges  thought  that  as  the  delivery  of  the  mare  was  obtained 
from  the  owner  by  means  of  asserting  that  which  was  false,  viz.  that 
the  prisoner  wanted  to  go  a  journey  which  he  never  intended  to  take 
at  all ;  and  as  the  two  statutes  before  mentioned  had  made  the  offence 
of  obtaining  goods  by  false  tokens  or  false  pretences  punishable  as 
a  misdemeanor  only,  and  the  stat.  33  H.  8,  had  distinguished  the 
case  of  obtaining  goods  by  false  tokens  from  the  case  of  obtaining 
goods  by  stealth  ;  they  were  bound  by  those  statutes  to  say,  that  the 
prisoner  s  offence  was  not  felony.  One  of  them  also  held  that  this 
was  not  felony  by  the  common  law  ;  because  there  was  no  actual  tak- 
ing of  the  mare  by  the  prisoner.  But  ten  out  of  the  eleven  judges 
held  it  to  be  clear  that  the  offence  would  have  been  felony  by  the 
common  law,  if  the  statutes  had  never  existed  ;  and  seven  of  them  held 
that  it  was  not  within  or  at  all  affected  by  the  statutes  of  H.  8  or  G.  2. 
That  larceny  was  defined  by  Lord  Coke  to  mean  a  felonious  and  fraud- 
ulent taking  and  carrying  away  of  the  goods  of  another.  But  it  was- 
settled  by  old  authorities,  that  the  taking  need  not  be  by  force.  If  a. 
carrier  or  porter  received  goods  to  carry  from  one  place  to  another,  and 
he  opened  the  pack  and  sold  them,  that  was  felony  ;  yet  in  that  case 
there  was  no  taking  by  force,  but  on  a  delivery  by  the  owner.  That 
the  reason  assigned  for  the  determination  in  Kel.  82  was  because  the 
opening  and  disposing  of  them  declared  that  his  intent  originally  was 
not  to  take  the  goods  upon  the  agreement  and  contract  of  the  party, 
but  only  with  a  design  of  stealing  them.  So  if  A.  cheapened  goods  of 
B.'s,  and  B.  delivered  them  to  A.  to  look  at,  and  A.  ran  away  with  them, 
this  was  felony  by  the  apparent  intent  of  A.  T.  Ray.  276  ;  Kel.  82.  So 
if  a  horse  were  upon  sale,  and  the  owner  let  the  thief  mount  him  in 
order  to  try  him,  and  the  thief  rode  away  with  him,  it  was  felony.  Kel. 
82.  So  in  the  case  of  one  Tunnard,  tried  at  the  O.  B.  in  October 
Sessions,  1729,  who  was  indicted  for  stealing  a  brown  mare  of  Henry 
Smith's  :  and  upon  the  evidence  it  appeared,  that  Smith  lived  in  the 
Isle  of  Ely,  and  lent  Tunnard  the  mare  to  ride  three  miles  ;  but  he, 
instead  of  riding  three  miles  only,  rode  her  up  to  London  and  sold  her : 
this  was  holden  to  be  felony.     And  Lord  C.  J.  Raymond,  who  tried 

1  Mr.  .Justice  Blackstone,  the  other  judge,  who  was  absent  on  account  of  illness, 
always  held  that  it  was  felony.     (East'o  note. ) 


SECT.  IV.]  REX   V.    PEAR.  649 

the  prisoner,  left  it  to  the  jur\'  to  consider,  Whether  Tunnard  rode  avva}^ 
with  her  with  an  intent  to  steal  her?  and  the  jury  found  him  guiltj^. 
That  here  the  same  directions  were  given  to  the  jury  by  the  learned 
judge  who  tried  the  prisoner,  and  the  jurj'  had  given  the  same  verdict. 
That  even  in  the  case  of  burglary,  which  the  law  defined  to  be  the 
breaking  into  a  house  in  the  night  time  with  intent  to  commit  felon3-,  if 
a  man  procured  the  door  of  a  house  to  be  opened  b}-  fraud,  and  by  that 
means  entered  into  the  house  through  the  door-way  without  any  actual 
breaking,  it  had  been  adjudged  to  be  burglary.  That  in  all  these  cases 
the  intention  was  the  thing  chiefly  regarded,  and  fraud  supplied  the 
place  of  force,  That  what  was  the  intention  was  a  fact,  which  in  ever}- 
case  must  be  left  upon  the  evidence  to  the  sound  judgment  of  a  jury. 
AM  In  this  case  the  jury  had  found  that  at  the  time  when  the  prisoner 
obtained  the  possession  of  the  mare,  he  intended  to  steal  her.  That 
the  obtaining  the  possession  of  the  mare,  and  afterwards  disposing  of 
her  in  the  manner  stated,  was  in  the  construction  of  law  such  a  taking 
as  would  have  made  the  prisoner  liable  to  an  action  of  trespass  at  the 
suit  of  the  owner,  if  he  had  not  intended  to  steal  her.  For  siie  was 
delivei-ed  to  the  prisoner  for  a  special  purpose  only,  viz.  to  go  to  Sutton, 
which  he  never  intended  to  do,  but  immediately  sold  her.  That  in  tliis 
light  the  case  would  be  similar  to  what  was  laid  down  by  Littleton,  sect. 
71,  who  says,  "If  I  lend  to  one  my  sheep  to  dung  his  land,  or  m^- 
oxen  to  plough  the  land,  and  he  killeth  my  cattle,  I  may  have  trespass 
notwithstanding  the  lending."  That  if  in  such  a  case  trespass  would 
have  lain,  there  could  be  no  doubt  but  that  in  this  case,  where  the 
felonious  intent  at  the  time  of  obtaining  the  possession  was  found  by 
the  jury,  that  it  was  felony-  bv  the  common  law.  That  ten  of  the 
judges  out  of  the  eleven,  therefore,  were  of  opinion,  that  if  a  person 
obtained  the  delivery  of  a  thing  bj'  fraud  and  falsehood,  intending  at 
the  time  that  he  so  obtained  the  delivery  to  steal  it ;  upon  tlie  principle 
oT  the  common  law  and  the  adjudged  cases  which  had  been  mentioned, 
if  the  st_atntes  had  not  existed,  his  offence  would  be  felony.^  That  the 
next  question  was,  Whether  this  offence  were  within  or  at  all  affected 
b}'  the  statutes  of  H.  8  and  G.  2.^  Seven  of  the  judges  were  of 
ppinion  that  it  was  not.     That  the  stat.  of  H.  8  was  confined  to  the 

^  On  the  dehfite  of  this  case,  Ashurst,  J.,  said,  "  Wlierever  there  is  a  real  and  bona 
fide  contract  and  a  delivery,  and  afterwards  the  goods  are  converted  to  the  party's 
own  use,  that  is  not  felony.  But  if  there  be  no  real  and  bona  fide  contract,  if  the 
understanding  of  the  parties  be  not  the  same,  the  contract  is  a  mere  pretence,  and  the 
taking  is  a  taking  with  intent  to  commit  felony.     (East's  note.) 

2  On  the  debate  in  this  case  Eyre,  B.,  adverting  to  these  statutes,  said  he  doubted 
if  there  were  not  a  distinction  in  this  respect  between  the  owner's  parting  with  the 
possession  and  with  the  property  in  the  thing  delivered.  That  where  goods  were  de- 
livered upon  a  false  token,  and  the  owner  meant  to  part  with  the  property  absolutely 
and  never  expected  to  have  the  goods  returned  again,  it  might  be  difficult  to  reach  the 
case  otherwise  than  througli  the  statutes ;  aliter,  wherehe  parted  with  the  possession 
only :  for  there  if  the  possession  were  obtained  by  fraud,  and  not  taken  according  to 
the  agreement ;  it  was  on  the  whole  a  taking  against  the  will  of  the  owner ;  and  if 
done  animo  furandi,  it  was  felony.     (MS.  Buller,  J.) 


650  EEGINA  V.   BUNCE.  [CHAP.  VIII. 

eases  of  obtaining  goods  in  other  men's  names,  by  false  tokens  or 
counterfeit  letters,  made  in  any  other  man's  name.  The  stat.  of  G. 
2  extended  tliut  huv  to  all  cases  where  goods  were  obtained  by  false 
pretences  of  any  kind.  But  both  these  statutes  were  confined  to  cases 
where  credit  was  obtained  in  the  name  of  a  tliird  person  ;  and  ilid  not 
extend  to  cases  wliere  a  man.  on  his  own  account,  got  goods  with  an 
intention  to  steal  them.  That  besides,  tlie  seven  judges  lield  tliat 
neither  of  tliose  statutes  were  intended  to  mitigate  the  common  law, 
or  to  make  that  a  less  offence  wliich  was  a  greater  before.  On  the 
contrary,  the  legislature,  by  those  statutes,  meant  to  inflict  a  severer 
punishment  in  the  cases  of  fraud  than  the  common  law  had  done.  That 
in  many  cases  it  was  extremely  difficult,  and  sometimes  impossible  to 
prove  what  the  offender's  original  intention  was.  The  circumstances 
evidencing  a  felonious  intent,  or  the  contrary,  were  so  various,  that 
Hale,  p.  509,  says  it  is  impossible  to  prescribe  them  •,  they  must  be  left 
to  the  consideration  of  a  judge  and  jur}'.  That  where  an  original 
felonious  intent  appeared,  the  statutes  did  not  applj-.  Where  no  such 
intent  appeared,  if  the  means  mentioned  in  the  statutes  were  made  use 
of,  the  legislature  had  made  the  offender  answerable  criminally,  who 
before  by  the  common  law  of  the  land  was  only  answerable  civilly. 
That  in  the  prisoner's  case  the  intention  was  apparent,  and  the  jury 
had  rightly  found  that  it  was  felonious.  The  crime  then  was  felony, 
and  of  a  nature  which  the  statute  law  had  made  punishable  with, 
death.^ 


EEGINA  V.  BUNCE. 
Oxford  Assizes.     1859. 

[Reported  1  Foster  c^-  Finlason,  52.3.] 

The  prisoner,  a  gypsy  woman,  surrendered  to  take  her  trial  upon  a 
charge  of  stealing  £10  95.  Ad.,  and  various  articles,  the  property  of 
John  Prior,  at  Witney,  on  the  13th  of  Januar}',  1859. 

It  had  been  usual,  on  this  circuit,  to  charge  offences,  of  this  nature 
as  obtaining  mone}-  by  false  pretences  ;  but  on  this  occasion,  in  defer- 
ence to  a  suggestion  thrown  out  by  Crompton,  J.,  in  addressing  the  grand 
jury,  the  offence  was  charged  as  one  of  larcen}',  as  consisting  in  obtain- 
ing possession  of  the  goods  by  a  trick  or  fraud. 

R.  Sawyer  appeared  for  the  prosecution. 

Griffits  defended  the  prisoner. 

The  prisoner  was  a  gyps}-  woman  who  had  succeeded  in  getting  a 

1  Ace.  Rex  v.  Semple,  Leach,  691  ;  State  v.  Woodruff,  47  Kas.  151 ;  Justices  v.  People, 
90  N.  Y.  12  ;  State  v.  Gorman,  2  N.  &  McC.  90;  Starkie  v.  Com.,  7  Leigh,  752.  Contra 
Felter  v.  State,  9  Yer^.  397 ;  but  ,see  Defrese  v.  State,  3  Heisk.  53 ;  Holl  v.  State,  6 
Baxt.  522  (statutory).  —  Ed. 


SECT.  IV.]  REGINA   V.    BUNCE.  651 

large  amount  of  property  from  the  wife  of  the  prosecutor,  by  pretend- 
ing that  she  possessed  supernatural  powers  and  was  able  to  procure 
for  her  dupe  the  sum  of  £170.  On  the  12th  of  January  last,  the  pris- 
oner went  to  the  house  of  the  prosecutor  (who  was  out),  saw  his  wife, 
and  addressed  her,  saying,  "•Mrs.  Prior,  you  are  looking  very  ill.  I 
have  got  sometliing  to  tell  30U.  There  is  some  property  left  for  you 
that  you  have  been  cheated  out  of,  and  I  can  get  it  for  you."  The 
prisoner  then  said  that  she  had  got  a  book,  and  she  could  raise  the 
spirits  and  lay  them  if  Mrs.  Prior  would  put  half  a  crown  on  a  certain 
spot  in  the  book  which  she  pointed  out.  Mrs.  Prior  said  to  the  pris- 
oner that  she  had  heard  of  such  tilings,  and  she  thought  that  spirits 
could  be  raised,  and  was  induced  to  put  some  money  in  the  book. 
The  prisoner  went  awa}-,  and  returned  the  next  da^-,  and  said  she  had 
been  working  all  night,  and  that  her  husband's  mone^'  would  not  do, 
and  she  must  have  sovereigns  ;  and  she  then  required  her  to  give  her 
all  the  money  she  had  got,  and  promised  she  would  bring  it  back  the 
next  Monday,  and  also  the  sum  of  £170,  which  she  said  belonged  to 
her.  On  these  representations,  the  wife  gave  her  all  the  money  she 
could  get,  amounting  to  £10  9s.  4(7.  Mrs.  Prior,  who  appeared  to  be 
a  ver}^  nervous  woman,  and  afraid,  even  now,  to  look  at  the  prisoner 
in  the  dock,  said  she  was  so  frightened  at  what  the  prisoner  told  her, 
that  she  felt  she  must  go  and  get  the  money  she  wanted,  and  that  she 
let  her  have  it  because  she  believed  from  what  she  said  she  could  do 
her  good  or  evil  and  was  so  afraid  of  her.  When  Mrs.  Prior  gave  the 
prisoner  the  money,  she  required  a  shift  to  wrap  the  money  up  in,  and 
also  Mrs.  Prior's  shawl.  These  were  given  her,  on  her  promise  to 
return  them  on  the  Monda}'.  The  prisoner  then  wanted  a  cloth  to 
fasten  it  all  up  in,  saying  she  must  bury  it.  This  was  given,  and  also 
Mrs.  Prior's  gold  wedding-ring,  a  silver  thimble,  a  brass  ring,  and  five 
old  silver  coins,  the  prisoner  saying  she  must  have  everything  Mrs. 
Prior  had  got  that  was  valuable.  All  these  things  were  given  to  the 
prisoner  on  her  promise  to  bring  them  all  back  on  the  Monda}-,  to- 
gether with  the  £170,  and  to  have  a  cup  of  tea.  The  prisoner  was  to 
have  £5  for  her  trouble.  She  never  returned,  and  was  taken  into  cus- 
tody, on  the  12th  February,  with  Mrs.  Prior's  shawl  upon  her.  On  her 
cross-examination,  Mrs.  Prior  said  the  prisoner  always  came  when  her 
husband  was  out,  and  that  she  had  never  told  him  anything  about  it. 
A  friend  of  the  prisoner's  had  since  returned  £5  to  the  prosecutor,  and 
had  promised  £3  more. 

Griffits  submitted  that  there  was  no  case  for  the  jury. 

Channell,  B.,  after  consulting  Crompton,  J.,  ruled  that  there  was. 

Griffits  (to  the  jury)  contended  there  was  nothing  to  show  that  she 
had  got  possession  of  the  goods  with  a  felonious  intent,  but  only  with  a 
view  to  practice  her  art  as  a  witch,  in  whicli  the  prosecutrix,  lil^e  man}' 
other  people,  was  foolish  enough  to  believe,  and  possibly  the  prisoner 
may  have  believed.  And  if  this  was  the  original  intention,  then, 
although  it  was  afterwards  altered,  there  would  be  no  larceny. 


652  SMITH   V.    PEOPLE.  [CHAP.  VIII. 

Channeix,  B.,  to  the  jur}-.  It  is  for  you  to  nay  whether  or  not  the 
prisoner  obtained  possession  of  the  goods  with  a  felonious  intent.  If 
the  original  intention  was  as  suggested,  there  would  be  no  larceny  ;  but 
if  it  was  a  mere  trick  to  get  the  goods  with  no  intention  to  return  them 
ITwould  be  larceny.^  Verdict  guilty. 


SMITH   V.   PEOPLE. 
Court  of  Appeals  of  New  York.     1873. 

[Reported  53  New  York,  111.] 

Error  to  the  General  Terra  of  the  Supreme  Court  in  the  first 
judicial  department  to  review  judgment,  affirming  judguient  of  the 
Court  of  General  Sessions  in  and  for  the  city  and  county  of  New  York, 
entered  upon  a  verdict  convictiug  plaintiff  in  error  of  the  crime  of 
grand  larceu}'. 

Upon  the  19th  day  of  July,  1872,  the  plaintiff  in  error  called  upon 
one  Sarah  March  and  informed  her  that  her  husband,  Charles  March, 
was  arrested  and  locked  up  on  a  charge  of  striking  a  man  over  the  head 
with  a  chair,  and  that  her  husband  had  sent  him  to  her  to  get  some 
money,  twelve  dollars,  and  unless  she  sent  it  he  would  be  locked  up  all 
night.  Not  having  any  money,  and,  upon  the  solicitation  of  the  pri- 
soner, believhig  his  statement  to  be  true,  she  gave  him  a  watch,  chain, 
and  a  locket  or  cross,  and  two  dollars  in  money,  belonging  to  her 
husband,  which  propert}'  he  was  to  pawn  and  give  the  ticket  and  money 
to  her  husband.  The  property  was  given  to  him  and  he  left.  The 
statement  of  the  prisoner  was  false.  Charles  March,  the  husband, 
never  had  been  arrested,  never  sent  him  for  an}'  money,  and  did  not 
know  him.  The  plaintiff  in  error  appropriated  the  propert}'  so  obtained 
to  his  own  use. 

The  court  charged  the  juiy,  in  substance,  that  if  they  believed  the 
evidence  of  the  prosecution,  and  that  the  prisoner  at  the  time  of  the 
taking  had  the  felonious  intent  to  appropriate  the  property,  it  was 
larceny,  to  which  the  prisoner's  counsel  excepted.  The  jury  rendered 
a  verdict  of  guilty.^ 

Willicnn  F.  Kintzing^  for  the  plaintiflf'in  error. 

Benjcwxin  K.  Phelps,  for  the  defendants  in  error. 

Allen,  J.  The  accused  obtained  the  custody  of  the  chattels  and 
money  of  the  prosecutor  from  his  wife  by  a  fraudulent  device  and  trick, 
and  for  a  special  purpose,  connected  with  the  falsely  represented 
necessities  of  the  owner,  with  the  felonious  intent  to  appropriate  the 
same  to  his  own  use.     He  did  not  pawn  or  pledge  the  goods,  as  he 

1  See  Cantwell  v.  Peo.  (111.),  28  N.  E.  964.  —  Ed. 

2  Arguments  of  counsel  are  omitted. 


SECT.  IV.]  SMITH   V.    PEOPLE.  '^SS 

proposed  to  do,  but  did  appropriate  the  same  to  his  own  use,  in 
pursuance  of  the  felonious  intent  with  which  he  received  them. 
This  constitutes  the  crime  of  larceny.  The  owner  did  not  part  with 
the^  property  in  the  chattels,  or  transfer  the  legal  possession.  The  ac- 
cused had  merely  the  custody  ;  the  possession  and  ownership  remain- 
ing in  the  original  proprietor.  The  proposition  is  elementary  that 
larcen}'  ma}'  be  committed  of  goods  obtained  from  the  owner  by 
deliver}',  if  it  be  done  animo  furandi.  Per  Cowen,  J.,  Gary  v. 
IlotaiUng,  1  Hill,  311  ;  Am.  Crim.  Law,  by  Wharton,  §  1847,  et  seq.  ; 
Reg.  V.  Smith,  1  C.  &  K.  423  ;  Reg.  y.  Beaman,  1  C.  &  M.  595  ;  Reg. 
V.  Evans,  id.  632. 

The  rule  is,  that  when  the  delivery  of  goods  is  made  for  a  certain 
special  and  particular  purpose,  the  possession  is  still  supposed  to  reside, 
not  parted  with,  in  the  first  proprietor.  It  is  stated  that  if  a  watch- 
maker steal  a  watch  delivered  him  to  clean,  or  if  a  person  steals  clothes 
delivered  for  the  purpose  of  being  washed,  or  guineas  delivered  for  the 
purpose  of  being  changed  into  half  guineas,  or  a  watch  delivered  for 
the  purpose  of  being  pawned,  the  goods  have  been  thought  to  remain 
in  the  possession  of  the  proprietor,  and  tlie  taking  them  away  held  to 
be  a  felony.  1  |Iawk.  P.  C  33,  §  10  ;  2  Russell  on  Crimes,  22.  A 
distinction  is  made- between  a  bare  charge  or  special  use  of  the  goods, 
and  a  general  bailment;  and  it  is  not  larcenj'  if  the  owner  intends 
to'  part  with  the  property,  and  deliver  the  possession  absolutely, 
althougli  he  has  been  induced  to  part  with  the  goods  b}'  fraudulent 
means.  If  by  trick  or  artifice  the  owner  of  propert}'  is  induced  to  part 
with  the  custody  or  naked  possession  to  one  who  receives  the  property 
animo  furandi^  the  owner  still  meaning  to  retain  the  right  of  property, 
the  taking  will  be  larceny  ;  but  if  the  owner  part  with  not  only  the 
possession,  but  the  right  of  property  also,  the  offence  of  the  party 
obtaining  them  will  not  be  larceny,  but  that  of  obtaining  goods  by  false 
pretences.  Ross  v.  People,  5  Hill,  294;  Lewer  v.  Commonwealth,  15 
S.  «fe  R.  93  ;  2  Russell  on  Crimes,  28.  Here  the  jury  have  found  the 
intent  to  steal  at  the  time  of  taking,  which  is  all  that  is  required  to 
constitute  larceny,  where  the  mere  possession  is  obtained  by  fraud  or 
trick.  Wilson  \k  People,  39  N.  Y.  459 ;  People  v.  Call,  1  Den. 
120;  People  v.  McDonald,  43  N.  Y.  61. 

The  conviction  was  right,  and  the  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed} 

1  Ace.  Soltau  r.  Gerdau,  119  N.  Y.  380;  State  v.  McRae,  111  N.  C.  665;  State  v 
Lindenthall,  5  Rich.  237. —  Ed. 


654  COMMONWEALTH    V.    RUBIN.  [CHAP.  VIII. 

COMMONWEALTH  v.  RUBIN. 

Supreme  Judicial  Court  of  Massachusetts.     1896. 
[Reported  165  Mass.  453.] 

Holmes,  J.  The  defendants  have  been  convicted  on  a  count  for 
larcen}'  of  a  horse,  the  property  and  in  the  possession  of  one  Perkins, 
in  Natick,  in  the  count}'  of  Middlesex.  The  question  presented  by  the 
exceptions  is  whether  the  evidence  justified  a  conviction.  The  horse 
had  been  bought  for  Perkins,  and  a  boy  had  been  engaged  by  Perkins's 
servant  to  take  it  from  the  sale  stable  in  Boston  to  Framingham.  On 
his  way  the  bo}-  fell  in  with  the  defendants  driving,  and  they  took  him 
into  their  wagon.  While  driving,  the}'  said  they  w^ould  deliver  the 
horse  for  him.  He  assented.  They  paid  him  what  he  was  to  receive 
from  Perkins,  and  he  left  the  horse  with  them  at  Wellesle}',  in  the 
county  of  Norfolk.  The  defendants  misappropriated  the  horse  which 
afterwards  was  found  on  their  premises  at  Natick.  ,  The  boy  was 
innocent.  //., 

If  the  boy  had  converted  the  horse,  inasmuch  as  it:liad  been  delivered 
to  him  by  a  third  person  and  had  not  reached  its  destination,  the  oflfence 
would  not  have  been  larceny  b}'  reason  of  the  ancient  anomaly  sanc- 
tioned by  Commonwealth  v.  King,  9  Gush.  204,  and  explain.-^d  in  Com- 
monwealth V.  Ryan,  155  Mass.  523.  But  that  is  in  consequence  of 
the  ambiguous  attitude  of  the  law  toward  his  custody,  which  prevents 
it  from  regarding  his  conversion  as  a  trespass.  There  is  no  such 
trouble  when  a  third  person  converts  the  chattel.  It  is  larceny  equally 
when  he  takes  the  thing  from  a  bailee,  from  a  servant,  or  from  the 
owner  himself  Commonwealth  v.  O'Hara,  10  Gray,  469.  Common- 
wealth V.  Lawless,  103  Mass.  425.  Commonwealth  v.  Sullivan,  104 
Mass.  552.  Of  course  the  title  had  passed  to  Perkins,  and  for  most 
purposes  the  possession  also,  and  this  being  so,  either  there  is  no  ques- 
tion of  pleading  or  variance,  or  the  statute  disposes  of  it,  if  a  larceny 
is  proved.     Pub.  Sts.  c.  214,  §  14. 

But  the  horse  was  delivered  to  the  defendants,  and  the  question 
remains  whether  their  conduct  falls  under  any  recognized  exception  to 
the  requirement  of  a  taking  by  trespass.  One  such  exception  is  when 
the  possession  of  a  chattel,  but  not  the  title,  is  gained  by  a  trick  or 
fraud  with  intent  to  convert  it.  Commonwealth  v.  Barry,  124  Mass. 
325.  Commonwealth  v.  Lannan,  153  Mass.  287,  289.  It  may  be 
assumed  that  acceptance  of  a  chattel  upon  a  contract  or'promise,  with 
intent  not  to  carry  out  the  promise  but  to  convert  the  chattel,  is  within 
this  exception.  Commonwealth  v.  Barry,  uhi  supra.  2  Bish.,  Crim. 
Law,  (8th  ed.)  §  813.  So  that  the  question  is  narrowed  to  whether 
there  was  any  evidence  of  intent  at  the  time  when  the  defendants  re- 
ceived the  horse,  the  only  fact  bearing  upon  the  matter  being  what 


SECT.  IV.]  COMMONWEALTH    V.   EUBIN.  655 

the}'  did  shortl}'  afterwards.  This  has  been  settled,  so  far  as  precedent 
can  settle  it,  from  very  early  days,  although  the  principle  has  been 
disguised  in  an  arbitrary  seeming  form.  The  rule  that,  if  a  man  abuse 
an  authorit}-  given  him  by  the  law,  he  becomes  a  trespasser  ab  initio^ 
although  now  it  looks  like  a  rule  of  substantive  law  and  is  limited  to  a 
certain  class  of  cases,  in  its  origin  was  only  a  rule  of  evidence  by  which, 
when  such  rules  were  few  and  rude,  the  original  intent  was  i)resumed 
conclusively  from  the  subsequent  conduct.  It  seems  to  have  applied 
to  all  cases  where  intent  was  of  importance.  Hill,  J.,  in  Y.  B.  11  Hen. 
IV.  75,  pi.  16;  13  Ed.  IV.  9,  pi.  5.  The  Six  Carpenters'  case,  8  Co. 
Rep.  146  a,  b.  See  Y.  B.  9  Hen.  VI.  29,  pi.  34.  (Compare  as  to  bur- 
glary, 1  Hale  P.  C.  559,  560;  Stark.  Cr.  PI.  177;  2  East  P.  C.  509, 
510,  514.)  This  rule  was  mentioned  in  the  well  known  case  in  which 
it  was  decided  that  a  carrier  breaking  bulk  is  guilty  of  felony  :  Y.  B. 
13  Ed.  IV.  9,  pi.  5  ;  and  in  the  time  of  Charles  II.  even  was  thought 
to  explain  the  decision  there.  J.  Kel.  81,  82.  It  is  true  that  this  ex- 
planation hardly  can  be  accepted.  2  East  P.  C.  696.  It  was  repu- 
diated by  the  judges  who  decided  the  case.  But  seemingly  the  reason 
for  the  repudiation  was  that  at  that  time  the  intent  of  the  bailee  was 
supposed  to  be:  always  immaterial,  and  that  as  yet,  and  indeed  as  late 
as  Lord  Coke  and  Lord  Hale,  no  exception  had  been  made  to  the  gen- 
eral rule  that  delivery  by  the  owner  prevents  a  conversion  from  being 
felonv.  Y.  B.  13  Ed.  IV.  9,  pi.  5.  See  8  Co.  Rep.  146  b  ;  1  Hale  P. 
.  ,C.  504  ;  Y.  B.  12  Ed.  IV.  8,  pL  20;  21  Ed.  IV.  75,  76,  pi.  9.  Prob- 
ably the  first  suggestion  that  intent  can  be  important  when  there  is  a 
"'bailment  is  in  J.  Kel.  81,  82,  just  cited,  and  there  are  many  cases  in 
the  past  where  the  intent  of  the  bailee  was  open  to  question  but  was 
not  tried :  e.  g.  Raven's  case,  J.  Kel.  24  ;  Tunnard's  case,  2  East  P. 
C.  687,  694.  Since  the  law  has  changed  or  has  been  developed,  the 
carrier's  case  in  13  Ed.  IV.  9,  sometimes  has  tended  to  make  confusion. 
2  East  P.  C.  695-698,  c.  16,  §  115.  The  rule  as  to  trespass  ah  mitio 
having  been  held  not  to  apply  to  bailments  when  the  intent  of  tlie 
bailee  made  no  difference,  still  was  not  applied  to  them  after  the  intent 
was  held  material.  In  this  way  it  became  ossified  and  took  on  the 
appearance  of  a  limited  and  technical  rule  of  a  substantive  law.  See 
Esty  V.  Wilmot,  15  Gray,  168;  Smith  v.  Pierce,  110  Mass.  35,  38. 
But  since  it  has  been  settled  that  the  intent  may  be  decisive  as  to  lar- 
ceny, the  less  exti-eme  and  more  rational  proposition  which  led  to  the 
technical  rule,  namely,  that  the  subsequent  conduct  is  some  evidence 
of  the  original  intent,  has  been  acted  on  frequently  in  England  by 
leaving  the  case  to  the  jury  when  tne  whole  evidence  consisted  of  an 
ambiguous  receipt  and  a  subsequent  conversion.  J.  Kel.  81,  82.  Pear's 
case,  2  East  P.  C.  685,  687.  The  King  v.  Charlewood,  1  Leach  (4th 
ed.)  409  ;  S.  C.  2  East  P.  C.  689.  Leigh's  case,  2  East  P.  C.  694  ;  S. 
C.  1  Leach,  (4th  ed.)  411  note  (a).  Armstrong's  case,  1  Lewin,  195. 
Spence's  case,  1  Lewin,  197.     Rex  y.  Gilbert,  1  Moody  C.  C.  185.     The 


656  REGINA    V.    MIDDLETON.  [CHAP.  VIII. 

Queen  v.  Cole,  2  Cox  C.  C.  340.  See  also  Chisser's  case,  T.  Raym.  275, 
276,  and  2  East  P.  C.  697,  citing  2  MS.  Sum.  233.  Cases  like  those 
mentioned  in  1  Hawk.  P.  C.  Larcen}-,  c.  33,  §  10,  of  a  watchmaker  steal- 
ing a  watch  delivered  to  him  to  clean,  and  the  like,  cannot  be  explained 
on  the  ground  suggested,  that  the  possession  remains  in  the  owner, 
but  it  would  seem  must  be  accounted  for  on  the  same  ground  as  the 
last.     See  2  East  P.  C.  683,  684,  c.  16,  §  110. 

In  the  case  at  bar,  the  conversion  followed  hard  upon  the  receipt  of 
the^horse,  and  the  inference  is  not  unnatural  that  the  intent  existed 
from  the  beginning,  as  it  is  proved  to  have  existed  a  very  short  time 
afterwards.  There  is  the  less  cause  for  anxiety  upon  the  point,  in  view 
of  the  merely  technical  distinction  between  larceny  and  embezzlement. 

Of  course,  if  the  defendants  received  the  horse  with  felonious  intent 
in  Norfolk,  and  carried  it  away  into  Middlesex,  they  could  be  indicted 
in  the  latter  county.  Exceptions  overruled. 


,1W^ 


'T'^ 


SECTION  IV  {continued). 
(c)    Delivery  by  Mistake. 

REGINA  V.  MIDDLETON. 

Crown  Case  Reserved.     1873. 

[Reported  Law  Reports,  2  Crown  Cases  Reserved,  38.] 

Case  stated  by  the  Common  Sergeant  of  London. 

At  the  session  of  the  Central  Criminal  Court  held  on  Monday,  the 
23d  of  September,  1872,  George  Middleton  was  tried  for  feloniously 
stealing  certain  mone}'  to  the  amount  of  £8  16s.  10c?.  of  the  moneys  of 
the  Postmaster-General. 

The  ownership  of  the  money  was  laid  in  other  counts  in  the  Queen 
and  in  the  mistress  of  the  local  post-ofBce. 

It  was  proved  by  the  evidence  that  the  prisoner  was  a  depositor  in  a 
post-office  savings-bank,  in  which  a  sum  of  lis.  stood  to  his  credit. 


SECT.  IV.]  BEGIN  A   V.    MIDDLETON,  657 

In  accordance  with  the  practice  of  the  bank,  he  duly  gave  notice  to 
withdraw  lO.s.,  stating  in  such  notice  the  number  of  his  depositor's  book, 
the  name  of  the  post-ollice,  and  the  amount  to  be  withdrawn. 

A  warrant  for  10^'.  was  duly  issued  to  the  prisoner,  and  a  letter  of 
advice  was  duly  sent  to  the  post-office  at  Notting  llill  to  pay  the  pris- 
oner 10s.  He  presented  himself  at  that  post-office  and  handed  in  his 
depositor's  book  and  the  warrant  to  the  clerk,  who,  instead  of  referring 
to  the  proper  letter  of  advice  for  10s.,  referred  by  mistake  to  another 
letter  of  advice  for  £8  16s.  lOd.,  and  placed  upon  the  counter  a  i/5 
note,  three  sovereigns,  a  half-sovereign,  and  silver  and  copper,  amount- 
ing altogether  to  £8  IGs.  lOfZ.  The  clerk  entered  the  amount  paid,  viz., 
£8  16s.  lOd.  in  the  prisoner's  depositor's  book  and  stamped  it,  and  the 
prisoner  took  up  the  money  and  went  away. 

The  mistake  was  afterwards  discovered,  and  the  prisoner  was  brought 
back,  and  upon  his  being  asked  for  his  depositor's  book,  said  he  had 
burnt  it.     Other  evidence  of  the  prisoner  having  had  the  money  was  ^ 
given. 

It  was  objected  by  counsel  for  the  prisoner  that  there  was  no  larceny, 
because  the  clerk  parted  with  the  property  and  intended  to  do  so,  and 
because  the  prisoner  did  not  get  possession  by  any  fraud  or  trick. 

The  jury  found  that  the  prisoner  had  the  animus  furandi  at  the  mo- 
ment of  taking  the  mone}'  from  the  counter,  and  that  he  knew  the  money 
to  be  the  money  of  the  Postmaster-General  when  he  took  it  up. 
^  A  verdict  of  guilty  was  recorded,  and  the  learned  Common  Sergeant 
reserved  for  the  opinion  of  the  Court  for  Crown  Cases  Reserved  the 
question  whether  under  the  circumstances  above  disclosed  the  prisoner 
was  properly  found  guilty  of  larceny. 

Nov.  23,  1872.  The  Court  [Kelly,  C.  B.  Martin,  B.,  Brett,  Grove, 
and  Quain,  JJ.]  reserved  the  case  for  the  opinion  of  all  the  judges. 

Jan.  25,  1873.  The  case  was  argued  before  Cockburn,  C.  J.,  Bovill, 
C.  J.,  Kelly,  C.  B.,  Martin,  Bramwell,  Pigott,  and  Cleasby,  BB., 
Blackburn,  Keating,  Mellor,  Brett,  Lush,  Grove,  Quain,  Denman,  and 
Archibald,  JJ. 

No  counsel  appeared  for  the  prisoner. 

Sir  J.  D.  Coleridge,  AM.  (^Metcalfe  and  Slade  with  him),  for  the 
prosecution. 

The  arguments  and  the  cases  cited  sufficiently  appear  from  the 
judgments. 

Jan.  28.  Per  Curiam.  The  majority  of  the  judges  think  that  the 
conviction  ought  to  be  affirmed,  for  reasons  to  be  stated  liereafter. 

June  7.     The  following  judgments  were  delivered  :  — 

BoviLL,  C.  J.,  read  the  judgment  of  Cockburn,  C.  J.,  Blackburn, 
Mellor,  Lush,  Grove,  Denman,  and  Archibald,  JJ.,  as  follows:  ^  — 

We  agree  that  according  to  the  decided  cases  it  is  no  felon}'  at  com- 
mon law  to  steal  goods  if  the  goods  were  already'  lawfully  in  the  pos- 

^  Part  of  this  opinion  is  omitted. 


658  REGINA   V.    MIDDLETON.  [CHAP.  VIII. 

session  of  the  thief;  and  that,  therefore,  at  common  law  a  bailee  of 
goods,  or  a  person  who  finds  goods  lost,  and  not  knowing  or  having  tlie 
means  of  knowing  whose  they  were,  takes  possession  of  them,  is  not 
guilty  of  larceny  if  he  subsequently,  with  full  knowledge  and  felonious 
intention,  converts  them  to  his  own  use. 

It  is,  to  say  the  least,  very  doubtful  whether  this  doctrine  is  either 
wise  or  just;  and  the  legislature,  in  the  case  of  bailees,  have  by  statute 
enacted  that  bailees  stealing  goods,  &c.,  shall  be  guilty  of  larceny,  with- 
out reference  to  the  subtle  exceptions  engrafted  by  the  cases  on  the  old 
law.  But  in  such  a  case  as  the  present  there  is  no  statute  applicable, 
and  we  have  to  apply  the  common  law. 

Now,  we  find  that  it  has  been  often  decided  that  where  the  true  owner 
did  part  with  the  physical  possession  of  a  chattel  to  the  prisoner,  and 
therefore  in  one  sense  the  taking  of  the  possession  was  not  against  his 
will,  yet  if  it  was  proved  that  the  prisoner  from  the  beginning  had  the 
intent  to  steal,  and  with  that  intent  obtained  the  possession,  it  is  suffi- 
cient taking.  We  are  not  concerned  at  present  to  inquire  whether 
originally  the  judges  ought  to  have  introduced  a  distinction  of  this  sort, 
or  ought  to  have  left  it  to  the  legislature  to  correct  the  mischievous  nar- 
rowness of  the  common  law,  but  only  whether  this  distinction  is  not  now 
established,  and  we  think  it  is.  The  cases  on  the  subject  are  collected 
in  Russell  on  Crimes,  4th  ed.  vol.  "J,  p.  207  ;  perhaps  those  that  most 
clearly  raise  the  point  are  Rex  v.  Davenport,  2  Russell  on  Ci'imes,  4th 
ed.  at  p.  201,  and  Rex  v.  Savage,  5  C.  &  P.  143,  2  Russell  on  Crimes, 
4th  ed,  at  p.  201. 

In  the  present  case  the  finding  of  the  jury,  that  the  prisoner,  at  the 
moment  of  taking  the  mone}^  had  the  animus  faraadi  and  was  aware 
of  the  mistake,  puts  an  end  to  all  objection  arising  from  the  fact  that 
the  clerk  meant  to  part  with  the  possession  of  the  monej-. 

On  the  second  question,  namely,  whether,  assuming  that  the  clerk 
was  to  be  considered  as  having  all  the  authority  of  the  owner,  the  in- 
tention of  the  clerk  (such  as  it  was)  to  part  with  the  property  prevents 
this  from  being  larcen}',  there  is  more  difficulty,  and  there  is,  in  fact,  a 
serious  difference  of  opinion,  though  the  majorit}-,  as  already  stated, 
think  the  conviction  right.  The  reasons  which  lead  us  to  this  conclu- 
sion are  as  follows  :  At  common  law  the  property  in  personal  goods 
passes  b}'  a  bargain  and  sale  for  consideration,  or  a  gift  of  them  accom- 
panied by  delivery  ;  and  it  is  clear  from  the  very  nature  of  the  thing 
that  an  intention  to  pass  the  property  is  essential  both  to  a  sale  and  to 
a  gift.  But  it  is  not.at  all  true  that  an  intention  to  pass  the  propert}', 
even  though  accompanied  by  a  deliver}',  is  of  itself  equivalent  to  either 
a  sale  or  a  gift.  We  will  presently  explain  more  fully  what  we  mean, 
and  how  this  is  material.  Now,  it  is  established  that  where  a  bargain 
between  the  owner  of  the  chattel  has  been  made  with  another,  b}'  which 
the  property  is  transferred  to  the  other,  the  property  actually  passes, 
though  the  bargain  has  been  induced  by  fraud.  The  law  is  thus  stated 
in  the  judgment  of  the  Exchequer  Chamber  in  Clough  v.  London  and 


SECT.  IV.]  EEGINA   V.   MIDDLETON.  659 

Northwestern  Ry.  Co.,  Law  Rep.  7  Ex.  2G,  at  pp.  34,  35,  where  it  is 
said,  "  We  agree  completely  with  what  is  stated  b}'  all  the  judges  be- 
low, that  the  property'  in  the  goods  passed  from  the  London  Pianoforte 
Co.  to  Adams  b\'  the  contract  of  sale  ;  the  fact  that  the  contract  was 
induced  by  fraud  did  not  render  the  contract  void,  or  prevent  the  prop- 
erty from  passing,  but  merelj-  gave  the  party  defrauded  a  right,  on  dis- 
covering the  fraud,  to  elect  whether  he  would  continue  to  treat  the 
contract  as  binding,  or  would  disatlirm  the  contract  and  resume  his  i)rop- 
ert}'.  .  .  .  We  think  that  so  long  as  he  has  made  no  election,  he  retains 
the  right  to  determine  it  either  way,  subject  to  this,  that  if  in  the  inter- 
val, whilst  he  is  deliberating,  an  innocent  third  party  has  acquired  an 
interest  in  the  property,  or  if,  in  consequence  of  his  delay,  the  position 
even  of  the  wrong-doer  is  affected,  it  will  preclude  him  from  exercising 
his  right  to  rescind." 

It  follows  obviously  from  this  that  no  conversion  or  dealing  with  the 
goods,  before  the  election  is  determined,  can  amount  to  a  stealing  of 
the  vendor's  goods  ;  for  thej'  had  become  the  goods  of  the  purchaser, 
and  still  remained  so  when  the  supposed  act  of  theft  was  committed. 
There  are,  accordingl}',  many  cases,  of  whicii  the  most  recent  is  Reg.  v. 
Prince,  Law  Rep.  1  C.  C.  150,  which  decide  that  in  such  a  case  the 
guilty  party  must  be  indicted  for  obtaining  the  goods  b}'  false  pre- 
tences, and  cannot  be  convicted  of  larceny.  In  that  case,  however, 
the  nioney  was  paid  to  the  holder  of  a  forged  check  payable  to  bearer, 
and  therefore  vested  in  the  holder,  subject  to  the  right  of  the  bank  to 
divest  the  property. 

In  the  present  case  the  property'  still  remains  that  of  the  Postmaster- 
General,  and  never  did  vest  in  the  prisoner  at  all.  There  was  no  con- 
tract to  render  it  his  which  required  to  be  rescinded  ;  there  was  no  gift 
of  it  to  him,  for  there  was  no  intention  to  give  it  to  him  or  to  any  one. 
It  was  simply  a  handing  it  over  by  a  pure  mistake,  and  no  property 
passed.  As  this  was  mone^',  we  cannot  test  the  case  b\-  seeing  whether 
an  innocent  purchaser  could  have  held  the  property.  But  let  us  sup- 
pose that  a  purchaser  of  beans  goes  to  the  warehouse  of  a  merchant 
with  a  genuine  order  for  so  many  bushels  of  beans,  to  be  selected  from 
the  bulk  and  so  become  the  property  of  the  vendee,  and  that  by  some 
strange  blunder  the  merchant  delivers  to  him  an  equal  bulk  of  coffee. 
If  that  coffee  was  sold  (not  in  market  overt)  by  the  recipient  to  a  third 
person,  could  he  retain  it  against  the  merchant,  on  the  ground  that  he 
had  bought  it  from  one  who  had  the  property  in  the  coffee,  though  sub- 
ject to  be  divested?  We  do  not  remember  any  case  in  which  such  a 
point  has  arisen,  but  surely  there  can  be  no  doubt  he  could  not ;  and 
that  on  the  principle  enunciated  by  Lord  Abinger,  in  Chanter  v.  Hop- 
kins, 4  M.  &  W.  at  p.  404,  when  he  says  :  "  If  a  man  offers  to  buy  peas 
of  another,  and  he  sends  him  beans,  he  does  not  perform  his  contract, 
but  that  is  not  a  warranty ;  there  is  no  warranty  that  he  should  sell 
him  peas ;  the  contract  is  to  sell  peas,  and  if  he  sends  him  anything 
else  in  their  stead,  it  is  a  non-performance  of  it." 


660  BEGIN  A   V.   MIDDLETON.  [CHAI\  VIII. 

We  admit  that  the  case  is  undistinguishable  from  the  one  supposed 
in  the  argument,  of  a  person  handing  to  a  cabman  a  sovereign  by  mis- 
talve  for  a  shilling  ;  but  after  carefull}-  weighing  the  opinions  to  the 
contrar}',  we  are  decidedly  of  opinion  that  the  property-  in  the  sovereign 
would  not  vest  in  the  cabman,  and  that  the  question  whether  the  cab- 
man was  guilty  of  larceny-  or  not.  would  de[)end  upon  this,  whether  he, 
at  the  time  he  took  the  sovereign,  was  aware  of  tlie  mistake  and  had 
then  the  guilty  intent,  the  animus  furandi 

But  it  is  further  urged  that  if  the  owner,  having  power  to  dispose 
of  the  property,  intended  to  part  with  it,  that  prevents  the  crime 
from  being  that  of  larceny,  though  the  intention  was  inoperative,  and 
no  property  passed.  In  almost  all  the  cases  on  the  subject,  the  propert}' 
bad  actually  passed,  or  at  least  the  court  thought  it  had  passed  ;  but 
two  cases,  Rex  v.  Adams,  2  Russell  on  Crimes,  4th  ed.  at  p.  200,  and 
Rex  V.  Atkinson,  2  East  P.  C,  673,  appear  to  have  been  decided  on 
the  ground  that  an  intention  to  pass  the  property,  though  inoperative, 
and  known  by  the  prisoner  to  be  inoperative,  was  enough  to  prevent 
the  crime  from  being  that  of  larceny.  But  we  are  unable  to  perceive 
or  understand  on  what  principles  the  cases  can  be  supported  if  Rex  v. 
Davenport,  2  Russell  on  Crimes,  4ta  ed.  at  p.  201,  and  the  others  in- 
volving the  same  principle  are  law  ;  and  though  if  a  long  series  of  cases 
had  so  decided,  we  should  think  we  were  bound  by  them,  yet  we  think 
that  in  a  coui't  such  as  this,  whicli  is  in  effect  a  court  of  error,  we 
ought  not  to  feel  bound  b}'  two  cases  which,  as  far  as  we  can  perceive, 
stand  alone,  and  seem  to  us  contrary  both  to  principle  and  justice. 

BoviLL,  C.  J.,  delivered  the  judgment  of  himself  and  Keating,  J.,  as 
follows  :  — 

The  proper  definition  of  larceny  according  to  the  law  of  England, 
from  the  time  of  Bracton  downwards,  has  been  considered  to  be  the 
wrongful  or  fraudulent  taking  and  carrying  away  by  any  person  of  the 
personal  goods  of  another,  from  an}'  place,  without  any  color  of  right, 
with  a  felonious  intent  to  convert  them  to  the  taker's  own  use,  and 
make  them  his  own  property,  without  the  consent  and  against  the  will 
of  tlie  owner.  And  the  question  for  our-consideration  is,  whether  the 
facts  of  the  present  case  bring  it  within  that  definition. 

Under  the  act  for  cstablisliing  post-office  savings-l)anks,  2-i  &  25 
Vict.  c.  14,  deposits  are  received  at  the  post-offices  authorized  by  virtue 
of  that  act,  for  the  purpose  of  being  remitted  to  the  principal  office 
(§  1).  By  §  2  the  Postmaster-General  is  to  give  an  acknowledgment 
of  such  deposits,  and  b}'  the  5th  section  all  raone3's  so  deposited  with 
the  Postmaster-General  arc  forthwith  to  be  paid  over  to  the  Commis- 
sioners for  the  Reduction  of  the  National  Debt.  By  the  same  section 
all  sums  withdrawn  by  depositors  are  to  be  repaid  out  of  those  moneys 
through  the  office  of  the  Postmaster-Gencral.  By  §  3  the  authority  of 
the  Postmaster-General  for  such  repayment  shall  be  transmitted  to  the 
depositor,  who  is  to  be  entitled  to  repayment  at  a  post-office  within  ten 
days. 


SECT.  IV.]  REGINA  V.    MIDDLETON.  661 

It  appears  to  us  that  the  moneys  received  by  the  postmasters  at 
their  reepective  offices,  by  virtue  of  this  act,  are  the  property  of  the 
Crown  or  of  the  Postmaster-General,  and  that  neither  the  postmasters, 
nor  the  clerks  at  the  post-offices,  have  any  power  or  authority  either 
general  or  special,  to  part  with  the  property  in,  or  even  the  possession 
of,  the  moneys  so  deposited,  or  any  part  of  them,  to  any  person  except 
upon  the  special  authority  of  the  Postmaster-General. 

In  this  case  the  prisoner  had  received  a  warrant  or  authority  from 
the  Postmaster-General,  entitling  him  to  repayment  of  lOs.  (being  part 
of  a  sum  of  U.S.  which  he  had  deposited)  from  the  post-office  at  Not- 
ting  Hill,  and  a  letter  of  advice  to  the  same  effect  was  sent  by  tlie 
Postmaster-General  to  that  post-office,  authorizing  the  payment  of  the 
10s.  to  the  prisoner. 

Under  these  circumstances  we  are  of  opinion  that  neither  the  clerk 
to  the  postmistress,  nor  the  postmistress  personally,  had  any  power  or 
authority  to  part  with  the  £5  note,  three  sovereigns,  the  half-sovereign, 
and  silver  and  copper,  amounting  to  £8  16s.  lOc?.,  which  the  clerk 
placed  upon  the  counter,  and  which  was  taken  up  by  the  prisoner. 

In  this  view  the  present  case  appears  to  be  undistinguishable  from 
other  cases  where  obtaining  articles  animo  furandi  from  the  master  of 
a  post-office,  though  he  had  intentionally  delivered  them  over  to  the 
prisoner,  has  been  held  to  be  larceny,  on  the  principle  that  the  post- 
master had  not  the  property  in  the  articles,  or  the  power  to  part  with 
the  property  in  them.  For  instance,  the  obtaining  the  mail  bags  by 
pretending  to  be  the  mail  guard,  as  in  Rex  v.  Pearce,  2  East  P.  C. 
p.  603  ;  the  obtaining  a  watch  from  the  postmaster  by  pretending  to  be 
the  person  for  whom  it  was  intended,  as  in  Reg.  v.  Kay,  Dears.  &  B, 
Cr.  C.  231  ;  2&  L.  J.  (M.  C.)  119  (where  Rex  v.  Pearce,  2  East  P.  C. 
p.  603,  was  relied  upon  in  the  judgment  of  the  court)  ;  and  the  obtain- 
ing letters  from  the  postmaster  under  pretence  of  being  the  servant  of 
the  party  to  whom  they  were  addressed,  as  in  Reg.  v.  Jones,  1  Den. 
Cr.  C.  188,  and  in  Reg.  v.  Gillings,  1  F.  «fe  F.  36,  were  all  held  to  be 
larceny. 

The  same  principle  has  been  acted  upon  in  other  cases,  where  the 
person  having  merely  the  possession  of  goods,  without  any  power  to 
part  with  the  property  in  them,  has  delivered  them  to  the  prisoner, 
who  has  obtained  them  animo  furandi  ;  for  instance,  such  obtaining  of 
a  parcel  from  a  carrier's  servant  by  pretending  to  be  the  person  to 
whom  it  was  directed,  as  in  Rex  v.  Longstreeth,  1  Mood.  Cr.  C.  137 ; 
or  obtaining  goods  through  the  misdelivery  of  them  by  a  carman's  ser- 
vant, through  mistake,  to  a  wrong  person,  who  appropriated  them 
aiiimo  furatidi,  as  in  Reg.  v.  Little,  10  Cox  Cr.  C.  559,  were,  in  like 
manner,  held  to  amount  to  larceny. 

In  all  these  and  other  similar  cases,  many  of  which  are  collected  in 
2  Russell  on  Crimes.  211  to  215,  the  property  was  considered  to  be 
taken  without  the  consent  and  against  the  will  of  the  owner,  though  the 
possession  was  parted  with  by  the  voluntary  act  of  the  servant,  to 


(362  KEGINA   V.   MIDDLETON.  [CHAP.  VIII. 

whom  the  property  had  been  intrusted  for  a  special  purpose.  And 
where  property  is  so  taken  by  the  prisoner  knowingly,  with  intent 
to  deprive  the  owner  of  it  and  feloniously  to  appropriate  it  to  himself, 
he  may,  in  our  opinion,  be  properly  convicted  of  larceny. 

The  case  is  very  different  where  the  goods  are  parted  with  by  the 
owner  himself,  or  by  a  person  having  authority  to  act  for  him,  and 
where  he  or  such  agent  intends  to  part  with  tlie  property  in  the  goods ; 
for  then,  although  the  goods  be  obtained  by  fraud,  or  forgery,  or  ftilse 
pretences,  it  is  not  a  taking  against  the  will  of  the  owner,  which  is 
necessary  in  order  to  constitute  larceny. 

The  delivery  of  goods  by  the  owner  upon  an  order  which  was  in  fact 
forged,  as  in  Reg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  payment  of  money 
bv  a  banker's  cashier  on  a  check  which  turned  out  to  be  a  forgery,  as 
in  Reg.  r.  Prince,  Law  Rep.  1  C.  C.  150,  and  the  delivery  up  of  pledges 
by  a  pawnbroker's  manager  by  mistake  and  through  fraud,  as  in  Rex 
V.  Jackson,  1  Mood.  Cr.  C.  119,  are  instances  of  this  kind,  and  where 
the  intent  voluntarily  to  part  with  the  property  in  the  goods,  by  a  per- 
son who  had  authority  to  part  with  the  property  in  them,  prevented  the 
offence  being  treated  as  a  larceny. 

In  the  present  case,  not  only  had  the  postmistress  or  her  clerk  no 
power  or  authority  to  part  with  the  property  in  this  money  to  the  pris- 
oner, but  the  clerk,  in  one  sense,  never  intended  to  part  with  the 
£8  165.  lOd.  to  the  person  who  presented  an  order  for  only  10s.,  and 
he  placed  the  money  on  the  counter  by  mistake,  though  at  the  time  he 
(l)y  mistake)  intended  that  the  prisoner  should  take  it  up,  and  by  mis- 
take entered  the  amount  in  the  prisoner's  book.  When  the  money  was 
Iving  upon  the  counter  the  prisoner  was  aware  that  he  was  not  entitled 
to  it,  and  that  it  could  not  be,  and  was  not,  really  intended  for  him  ; 
yet,  with  a  full  knowledge  on  his  part  of  the  mistake,  he  took  the 
money  up  and  carried  it  away,  intending  at  the  time  he  took  it  to 
deprive  the  owner  of  all  property  in  it,  and  feloniously  to  appropriate  it 
to  liis  own  use. 

There  was,  therefore,  as  it  seems  to  us,  a  wrongful  and  fraudulent 
taking  and  carrying  away  of  the  whole  of  this  money  by  the  prisoner, 
without  any  color  of  right,  animo  furandi,  and  against  the  will  of  the 
real  owner;  and  for  these  reasons,  and  upon  the  authorities  before 
stated,  we  think  the  prisoner  was  properly  convicted  of  larceny.^ 

PiGOTT,  B.  I  agree  in  the  judgment  of  the  majority  of  the  court, 
except  that  I  do  not  adopt  the  reasons  which  are  there  assigned  for 
holding  that  the  mistaken  intention  of  the  clerk  did  not,  under  the  cir- 
cumstances here,  prevent  the  case  from  being  one  of  larceny  on  the 
part  of  the  prisoner.  I  quite  accede  to  that  proposition,  but  my  rea 
son  is  that,  in  the  view  I  take  of  the  facts,  the  intention  and  acts  of  the 
clerk  are  not  material  in  determining  th«  nature  of  the  prisoner's  act 
and   intent,   because  the  transaction  between  them   stopped   short  of 

1  Kelly,  C.  B.,  delivered  an  opinion  concurring  with  that  of  Bovill,  C.  J. 


SECT.  IV.]  KEGINA   V.   MIDDLETON.  663 

placing  the  money  completeh'  in  the  prisoner's  possession,  and  could  in 
no  way  have  misled  the  prisoner. 

The  case  states  that  the  clerk  placed  the  mone}'  on  the  counter.  He 
then  entered  the  amount  of  it  in  the  prisoner's  book  and  stamped  it. 
This,  no  doubt,  gave  the  prisoner  the  opportunity  of  taking  up  the 
money,  and  he  did  so  in  the  presence  of  the  clerk  ;  but  before  doing  so 
he  must  have  seen  by  the  amount  that  the  clerk  was  in  error,  and  that 
the  money  could  not  really  be  intended  in  payment  of  his  order,  and 
therefore  was  not  for  him,  but  for  another  person.  It  was  with  full 
knowledge  of  this  mistake  that  he  resolved  to  avail  himself  of  it,  and  in 
fact  to  steal  the  money.  The  interval  afforded  him  the  opportunity  of 
conceiving,  and  he  did  in  fact  conceive,  the  animus  furandi,  while  as 
yet  he  had  not  got  the  money  in  his  manual  possession. 

The  dividing  line  may  appear  to  be  a  fine  one,  but  it  is,  I  think,  very 
distinct  and  well  defined  in  fact,  for  it  was  with  this  formed  intention 
in  his  mind  that  he  took  possession  of  the  money.  If  complete  posses- 
sion had  been  given  by  the  clerk  to  the  prisoner,  so  that  no  act  of  the 
latter  was  required  to  complete  it  after  his  discovery  of  the  mistake  and 
his  own  formed  intention  to  steal  it,  I  should  not  feel  m3-self  at  liberty 
to  affirm  this  conviction.  In  that  case  the  prisoner  would  have  done 
nothing  to  defraud  the  clerk,  and  the  latter,  intending  (to  the  extent  to 
which  he  had  such  intention)  as  much  to  pass  the  property  as  the 
possession  in  the  money,  there  would  be  nothing  to  deprive  the  matter 
of  the  character  of  a  business  transaction  fully  completed. 

I  desire  to  adhere  to  the  law  as  stated  in  the  3d  Institute,  page  110: 
"  The  intent  to  steal  must  be  before  it  cometh  to  his  hands  or  posses- 
sion, for  if  he  hath  the  possession  of  it  once  lawfully,  though  he  hath 
animus  furandi  afterwards  and  carrieth  it  away,  it  is  no  larceny." 
But  the  facts  satisf}'  me,  and  the  jury  have  found  upon  them,  tliat  the 
prisoner  had  the  animus  furandi  while  the  money  was  yet  on  the 
counter,  and  that  at  the  moment  of  taking  it  uj)  he  knew  the  money  to 
be  the  Postmaster-General's.  The  case  is  therefore  ver^'  much  like  that 
of  a  finder  who,  immediatel_y  on  finding  it,  knows,  or  has  the  means  of 
knowing,  the  owner,  yet  determines  to  steal  it.  2  Russell  on  Crimes, 
4th  ed.  p.  169.  The  same  facts  satisf}'  the  requirements  in  the  defi- 
nition of  larceu}',  that  the  taking  must  be  invito  domino.  The  loser 
does  not  intend  to  be  robbed  of  his  property*,  nor  did  the  clerk  in  this 
case,  and  the  prisoner's  conduct  is  unaffected  b}'  the  clerk's  apparent 
consent  in  ignorance  of  its  real  nature.     I  affirm  the  conviction. 

Bramwell,  B.  As  the  prisoner  has  now  undergone  his  nominal 
sentence,  I  should  think  it  better  that  the  small  minority  in  this  case, 
of  whom  I  am  one,  should  give  up  their  opinions  to  the  majority,  if  the 
case  turned  on  its  own  particular  circumstances  and  no  principle  was 
involved.  But  in  my  opinion  great  and  important  principles  not  only  of 
our  law  but  of  general  jurisprudence  arise  here,  on  which  I  feel  bound 
to  state  my  views. 

It  is  a  good  rule  in  criminal  jurisprudence  not  to  multiplj'  crimes,  to 


664  KEGINA    V.   MIDDLETON.  [CHAP.  VIII. 

make  as  few  matters  as  possible  the  subject  of  the  criminal  law,  and 
to  trust  as  much  as  can  be  to  the  operation  of  the  civil  law,  for  the  pre- 
vention and  remedy  of  wrongs.  It  is  also  a  good  rule  not  to  make 
that  a  crime  which  is  the  act,  or  partly  the  act,  of  the  party  coinphvin- 
inf.  Volenti  non  fit  injuria  :  As  far  as  he  is  willing,  let  it  be  no 
crime.  Here  the  taking  was  consented  to.  This  is  undoubtedly  a  rule 
of  the  English  common  law.  Obtaining  goods  by  false  pretences  was 
no  offence  at  common  law.  Ordinary  cheating  was  not.  Embezzle- 
ment, &c.,  by  servants  was  not  larcenous.  Breaches  of  trust  by  trus- 
tees and  bailees  were  not.  So  also  fraudulently  simulating  the  husband 
of  a  married  woman,  and  having  connection  with  her,  was  not.  And 
most  particularly  was  and  is  this  the  case  in  larceny,  for  the  definition 
of  it  is  that  the  taking  must  be  invito  domino. 

Whether  this  law  is  good  or  bad  is  not  the  question.  We  are  to 
administer  it  as  it  is.  I  think  those  statutes  that  have  made  offences 
of  such  matters  as  I  have  mentioned  improved  the  law,  because  the 
business  of  life  cannot  be  carried  on  without  trusting  to  representations 
that  we  cannot  verify,  and  without  trusting  goods  to  others  in  such  a 
way  that  the  owner  loses  all  power  of  watching  over  them  ;  and  it  is 
reasonable  that  the  law  should  protect  persons  who  do  so,  by  making 
criminals  of  those  who  abuse  that  confidence.  But  something  was  to 
be  said  in  favor  of  the  old  law,  viz.,  that  the  opportunity  for  the  crime 
was  afl!'orded  by  the  complainant.  Further,  there  is  certainly  a  difljer- 
ence  between  the  priv}'  taking  of  property  without  the  knowledge  of 
the  owner,  or  its  forcible  taking,  and  its  taking  with  consent  bj-  means 
of  a  fraud.  The  latter,  perhaps,  may  properl}'  be  made  a  crime  ;  but 
it  is  a  different  crime  from  the  other  taking. 

I  say,  then,  that  on  principles  of  general  jurisprudence,  on  the  gen- 
eral principles  of  our  law,  and  on  the  particular  definition  of  larceny,  the 
taking  must  be  invito  domino.  That  does  not  mean  contrary  to  or 
against  his  will,  but  without  it.  All  he  need  be  is  ^■?ivitus.  This 
accounts  for  how  it  is  that  a  finder  of  a  chattel  ma}'  be  guilty  of  lar- 
ceny. The  dominus  is  invitus.  So  in  the  case  of  a  servant  who  steals 
his  master's  property.  There  are  certain  cases  apparent!}'  inconsistent 
with  this,  but  which  are  brought  within  the  rule  indeed,  but  by  reason- 
ing which  ought  to  have  no  place  in  criminal  law.  I  mean  such  cases 
as  where  a  carrier  broke  bulk  and  stole  the  contents  or  part,  and  was 
guilty  of  larcen}^  but  would  not  have  been  had  he  taken  the  whole 
package,  and  cases  where  possession  was  fraudulentl}-  obtained,  animo 
furandi,  from  the  owner,  who  did  not  intend  to  part  with  the  property. 
In  such  cases  it  has  been  held  that  the  breach  of  trust  bv  the  carrier 
in  breaking  bulk  re-vested  the  possession  in  the  owner ;  and  in  the 
other  case  the  obtaining  of  possession  was  a  fraud,  and  so  null ;  and 
that  therefore  in  such  cases  the  possession  reverted  to  or  remained  in 
the  true  owner,  and  so  there  was  a  taking  invito  dom,ino.  So  also 
cases  where  the  custod}'  is  given  to  the  alleged  thief,  but  not  pos- 
session or  propert}',  as  when  the  price  of  a  chattel  delivered  is  to  be 


SECT.  IV. j  KEGINA   V.   MIDDLETON.  f)65 

paid  in  ready  money.  Reg.  v.  Cohen,  2  Den.  Cr.  C.  249.  These  are 
not  exceptions  to  tiie  rule,  but  arc  brought  within  it  by  artificial,  tech- 
nical, and  unreal  reasoning.  But  where  the  dominus  has  voluntarily 
parted  with  the  possession,  intending  to  part  with  the  property  in  the 
chattel,  it  has  never  yet  been  held  that  larceny  was  committed,  what- 
ever fraud  may  have  been  used  to  induce  him  to  do  so,  nor  whatever 
may  be  the  mistake  he  committed  ;  because  in  such  case  the  dominus  is 
not  invitus.  So  also  where  the  possession  has  been  parted  with  in  such 
way  as  to  give  the  bailee  a  special  property.  See  2  Russell  on  Crimes, 
4th  ed.  p.  191,  citing  2  East  P.  C.  p.  682  ;  Reg.  v.  Smith,  2  Russell  on 
Crimes,  4th  ed.  p.  191  ;  Reg.  v.  Goodbody,  8  C.  &  P.  665.  It  is  not 
necessary  that  the  property  should  pass,  the  intent  it  should  is  enough. 
See  Rex  v.  Coleman,  2  East  P.  C.  672. 

But  it  is  argued  that  here  there  was  no  intent  to  part  with  the  prop- 
erty, because  the  post-office  clerk  never  intended  to  give  to  Middleton 
what  did  not  belong  to  him.  A  fallacy  is  involved  in  this  way  of 
stating  the  matter.  No  doubt  the  clerk  did  not  intend  to  do  an  act  of 
the  sort  described  and  give  to  Middleton  what  did  not  belong  to  him, 
yet  he  intended  to  do  the  act  he  did.  What  he  did  he  did  not  do 
involuntarily  nor  accidentally,  but  on  purpose.  See  what  would  follow 
from  such  reasoning.  A.  intends  to  kill  B.  ;  mistaking  C.  for  B.,  he 
shoots  at  C.  and  kills  him.  According  to  the  argument,  he  is  not 
guilty  of  intentional  murder ;  not  of  B.,  for  he  has  not  killed  him  ;  not 
of  C,  for  he  did  not  intend  to  kill  him.  There  is  authority  of  a  very 
cogent  kind  against  this  argument.  A  man  in  the  dark  gets  into  bed 
to  a  woman,  who,  erroneously  believing  him  to  be  her  husband,  lets  him 
have  connection  with  her.  This  is  no  rape,  because  it  is  not  without  her 
consent,  yet  she  did  not  intend  that  a  man  not  her  husband  should 
have  connection  with  her.  I  have  noticed  this  above  as  another  illus- 
tration of  how  the  common  law  refuses  to  punish  an  act  committed 
with  the  consent  of  the  complainant. 

To  proceed  with  the  present  matter :  If  the  reasoning  as  to  not 
intending  to  give  this  money  is  correct,  then,  as  it  is  certain  that  the 
post-office  clerk  did  not  intend  to  give  Middleton  lOs.,  it  follows  that 
he  intended  to  give  him  nothing.  That  cannot  be.  In  truth,  he  in- 
tended to  give  him  what  he  gave,  because  he  made  the  mistake.  This 
matter  may  be  tested  in  this  way  :  A.  tells  B.  he  has  ordered  a  wine 
merchant  to  give  B.  a  dozen  of  wine  ;  B.  goes  to  the  wine  merchant, 
bond  fide  receives,  and  drinks  a  dozen  of  wine.  After  it  is  consumed 
the  wine  merchant  discovers  he  gave  B.  the  wrong  dozen,  and  demands 
it  of  B.,  who,  having  consumed  it,  cannot  return  it.  It  is  clear  the 
wine  merchant  can  maintain  no  action  against  B.,  as  B.  could  plead 
the  wine  merchant's  leave  and  license.  But  it  is  said  that  if  B.  knew 
of  the  mistake,  and  took  the  wine  animo  furandi,  then  he  would  have 
taken  it  incito  domino  ;  so  that  whether  the  dominus  is  invitus  or  not 
depends,  not  on  the  state  of  his  own  mind,  but  of  that  of  B. 

It  is  impossible  to  say  that  there  was  a  taking  here  sufficient  to  con- 


666  REGINA    V.    MIDDLETON.  [ciIAP.  VIII. 

stitute  larceny  because  the  money  was  picked  up,  but  that  if  it  had 
been  put  in  the  prisoner's  hand  there  was  not  such  a  taliing. 

But  for  the  point,  then,  I  am  about  to  mention,  I  submit  the  domi> 
nus  was  not  invitus,  that  he  consented  to  the  taking,  and  that  it  was 
partly  his  act.  No  doubt  the  prisoner  was  a  dishonest  man,  maybe 
what  he  did  ought  to  be  made  criminal,  but  his  act  was  different  from 
a  priv}'  or  forcible  taking  ;  he  was  led  into  temptation  ;  the  prosecutor 
had  ver}'  much  himself  to  blame,  and  I  certainly  thinlc  that  Middleton, 
if  punished,  should  be  so  on  different  considerations  from  those  which 
should  govern  the  punishment  of  a  larcenous  thief. 

But  a  point  is  made  for  the  prosecution  on  which  I  confess  I  have 
had  the  greatest  doubt.  It  is  said  that  here  the  dominus  was  invitus  ; 
that  the  dominus  was  not  the  post-office  clerk,  but  the  Postmaster- 
General  or  the  Queen  ;  and  that  therefore  it  was  an  unauthorized  act 
in  the  post-office  clerk,  and  so  a  trespass  in  Middleton  invito  domino. 
I  think  one  answer  to  this  is,  that  the  post-office  clerk  had  authorit}'  to 
decide  under  wliat  circumstances  he  would  part  with  the  money  with 
which  he  was  intrusted.  But  I  also  think  that,  for  the  purposes  of 
this  question,  the  lawful  possessor  of  the  chattel,  having  authorit}'  to 
transfer  the  property,  must  be  considered  as  the  dominus  within  this 
rule,  at  least  when  acting  bond  fide.  It  is  unreasonable  that  a  man 
should  be  a  thief  or  not,  not  according  to  his  act  and  intention,  but 
according  to  a  matter  which  has  nothing  to  do  with  them,  and  of  which 
he  has  no  knowledge. 

According  to  this,  if  I  give  a  cabman  a  sovereign  for  a  shilling  by 
mistake,  he  taking  it  animo  furandi.,  it  is  no  larcenj- ;  but  if  I  tell  ray 
servant  to  take  a  shilling  out  of  ni}^  purse,  and  he  by  mistake  takes  a 
sovereign,  and  gives  it  to  the  cabman,  who  takes  it  animo  furandi, 
the  cabman  is  a  thief  It  is  ludicrous  to  say  that  if  a  man,  instead  of 
himself  paying,  tells  his  wife  to  do  so,  and  she  gives  the  sovereign  for 
a  shilling,  the  cabman  is  guiltj^  of  larceny,  but  not  if  the  husband  gives 
it.  It  is  said  tliat  there  is  no  great  harm  in  this  ;  that  a  tliief  in  mind 
and  act  has  blundered  into  a  crime.  I  cannot  agree.  I  think  the 
criminal  law  ought  to  be  reasonable  and  intelligible.  Certainly  a  man 
who  had  to  be  hung  owing  to  this  distinction  might  well  complain,  and 
it  is  to  be  remembered  that  we  must  hold  that  to  be  law  now  which 
would  have  been  law  when  such  a  felony  was  capital.  Besides,  juries 
are  not  infallible,  and  may  make  a  mistake  as  to  the  animus  furandi^ 
and  so  find  a  man  guilty  of  larceny  when  there  was  no  theft  and  no 
animus  fur  audi.  Moreover,  Reg.  v.  Prince,  Law  Rep.  1  C.  C.  150,  is 
contrary  to  this  argument,  for  there  the  banker's  clerks  had  no  author- 
ity to  pay  a  forged  check  if  they  knew  it ;  they  had  authority  to 
make  a  mistake,  and  so  had  the  post-office  clerk.  And  suppose  in  this 
case  the  taking  had  been  bo7idfide,  — suppose  Middleton  could  neither 
write  nor  read,  and  some  one  had  made  him  a  present  of  the  book 
without  telling  him  the  amount,  and  he  had  thought  the  right  sum  was 
given  him,  —  would  his  taking  of  it  have  been  a  trespass  ?     I  think 


SECT.  IV.]  REGINA   V.   MIDDLETON.  fi67 

not,  and  that  a  demand  would  have  been  necessary  before  an  actioq 
of  conversion  could  be  maintained.^ 

Cleasby,  B.-  The  cases  establish  that,  where  there  is  a  complete 
dealing  or  transaction  between  the  parties  for  the  purpose  of  passing 
the  property,  and  so  the  possession  parted  with,  there  is  no  taking^ 
and  the  case  is  out  of  the  category-  of  larceny. 

I  believe  the  rule  is  as  I  have  stated,  and  that  it  is  not  limited  to 
cases  in  which  the  property  in  the  ciiattel  actually  passes  by  virtue  of 
the  transaction.  I  have  not  seen  that  limitation  put  upon  it  in  any  text- 
book on  the  criminal  law,  and  there  are,  unless  I  am  mistaken,  many 
authorities  against  it.  The  cases  show,  no  doubt,  beyond  question  that 
where  the  transaction  is  of  such  a  nature  that  the  property  iu  the  chat- 
tel actually  passes  (though  subject  to  be  resumed  by  reason  of  fraud 
or  trick),  there  is  no  taking,  and  therefore  no  larceu3^  But  they  do 
not  show  the  converse,  viz.,  that  when  the  property  does  not  pass 
there  is  larceny.  On  the  contrary,  they  appear  to  me  to  show  that 
where  tliere  is  an  intention  to  part  with  the  property  along  with  the 
possession,  though  the  fraud  is  of  such  a  nature  as  to  prevent  that 
intention  from  operating,  there  is  still  no  larceny.  This  seems  so 
clearl}'  to  follow  from  the  cardinal  rule  that  there  must  be  a  taking 
against  the  will  of  the  owner,  that  the  cases  rather  assume  that  the 
intention  to  transfer  the  property'  governs  the  case  than  expressly 
decide  it.  For  how  can  there  be  a  taking  against  the  will  of  the 
owner  where  the  owner  hands  over  the  possession,  intending  by  doing 
so  to  part  with  the  entire  property? 

As  far  as  my  own  experience  goes,  many  of  the  cases  of  fraudulent 
pretences  which  I  have  tried  have  been  cases  in  which  the  prisoner  has 
obtained  goods  from  a  tradesman  upon  the  false  pretence  that  he 
crane  with  the  order  from  a  customer.  In  these  cases  no  property 
passes  either  to  the  customer  or  to  the  prisoner,  and  I  never  heard 
such  a  case  put  forward  as  a  case  of  larceny.  And  the  authorities  are 
distinct,  upon  cases  reserved  for  the  judges,  that  in  such  cases  there 
is  no  larceny.  In  Keg.  v.  Adams,  1  Den.  Cr.  C.  38,  the  prisoner  was 
indicted  for  stealing  a  quantity  of  bacon  and  hams,  and  it  appeared 
that  he  went  to  the  shop  of  one  Aston,  and  said  he  came  from  Mr. 
Parker  for  some  hams  and  bacon,  and  produced  the  following  note, 
purporting  to  be  signed  by  Parker :  — 

Have  the  goodness  to  give  the  bearer  ten  good  thick  sides  of 
bacon,  and  four  good,  showy  hams,  at  the  lowest  price.  I  shall  be  in 
town  on  Thursday  next,  and  will  come  and  pay  you. 

Yours  respectfully,  T.  Parker, 

Aston,  believing  the  note  to  be  the  genuine  note  of  Parker  (who 
occasionally  dealt  with  him),  delivered  the  articles  to  Adams.     The 

1  The  remainder  of  the  opinion  is  omitted.  Martin  and  Cleasby,  BB.,  and 
Brett,  J.,  delivered  concurring  opinions. 

2  Part  only  of  the  opinion  is  given. 


668  WOLFSTEIN   V.    PEOPLE.  [cHAP.  VIII. 

jury  convicted,  but  upon  a  case  reserved,  upon  the  question  whether 
the  offence  was  larceny,  the  judges  were  all  of  opinion  that  the  con- 
viction was  wrong.  Rex  v.  Coleman,  2  East  P.  C.  p.  672,  is  to  the 
same  effect.  In  that  case  the  prisoner  got  some  silver  as  change, 
falsely  pretending  to  come  from  a  neighbor  for  it ;  and  it  was  held  not 
to  be  a  case  of  larceny.  Rex  v.  Atkinson,  2  East  P.  C.  p.  673,  was 
a  similar  one,  and  the  prisoner  was  convicted  ;  but  on  a  reference  to 
the  judges  after  conviction,  all  present  held  that  it  was  no  felony,  on 
the  ground  that  the  property  was  intended  to  pass  by  the  delivery 
of  the  owner. 

I  do  not  think  a  man  ought  to  be  exposed  to  a  charge  of  felony 
upon  a  transaction  of  this  description,  which  is  altogether  founded 
upon  an  unexpected  blunder  of  the  clerk.  The  prisoner  was  undoubt- 
edly at  the  office  for  an  honest  purpose,  and  finds  a  larger  sum  of 
money  than  he  demanded  paid  over  to  him  and  charged  against  him. 
A  man  may  order  and  pay  for  certain  goods,  and  by  mistake,  a  larger 
quantity  than  was  paid  for  may  be  put  in  the  package  and  he  nui,y 
take  them  away.  Or  he  may  pay  in  excess  for  that  which  is  ordered 
and  delivered.  Is  the  person  receiving  to  be  put  in  the  peril  of  a  con- 
viction for  felony  in  all  such  cases,  upon  the  conclusion  which  may  be 
arrived  at  as  to  whether  he  knew,  or  had  the  means  of  knowing,  and 
had  the  animus fitrandi?  I  think  not;  I  think  such  cases  are  out  of 
the  area  of  felony,  and  therefore  the  animus  furancli  is  inapplicable, 
and  ought  not  to  be  left  to  the  jury.  And  any  conclusion,  founded 
upon  the  finding  of  the  jury  upon  a  question  which  ought  not  to  be 
left  to  them  must  be  erroneous,  because  the  foundation  is  naught.  I 
think  the  conviction  was  against  law  and  ought  to  be  quashed. 

Conviction  affirmed} 


WOLFSTEIN   V.    PEOPLE. 

Supreme  Court  of  New  York.     1875. 

[Reported  6  Hun,  121.] 

Writ  of  error  to  the  Court  of  General  Sessions  for  the  city  and 
county  of  New  York,  to  review  the  conviction,  of  the  plaintifl"  in  error, 
of  the  crime  of  grand  larceny. 

Charles  W.  Brooke,  for  the  plaintiff  in  error. 

Benjamin  K.  Phelps,  for  the  defendants  in  error. 

Westbrook,  J.  The  plaintiff  in  error  having  been  convicted  in  the 
Court  of  General  Sessions  of  the  city  and  county  of  New  York  during 
the  month  of  April,  1875,  of  the  crime  of  grand  larceny,  has,  by  writ 
of  error,  brought  the  proceedings  into  this  court  for  review. 

1  But  see  Com.  v.  Hays,  14  Gray,  62.  —  Ed. 


SECT.  IV.]  WOI.FSTEIX    V.    PEOPLE.  669 

By  the  evidence  given  upon  tlie  trial  and  tlie  verdict  of  the  jury,  the 
following  facts  wore  established  :  The  prisoner  was  the  possessor  of  a 
draft,  dated  February  l.')tli,  1875,  drawn  payable  to  his  order  by  one  L. 
Boell,  on  Ileidelbach,  Frank,  &  Co.,  for  the  sum  of  seventy-four  dollars 
in  gold.  It  was  accepted  by  the  parties  upon  whom  it  was  drawn,  on 
the  I?th  day  of  March,  1875,  and  made  payable  on  demand  at  the 
German  American  Bank.  On  the  day  of  its  acceptance  it  was  presented 
by  the  accused  at  the  bank  for  payment,  and  the  paying  teller,  who  was 
umible  to  read  the  French  language  in  which  it  was  written,  and  who 
read  the  figures  upon  the  draft  as  $742,  paid  to  the  prisoner  that  sum 
of  money  in  gold.  The  party  to  whom  the  money  was  paid,  knowing 
that  he  was  entitled  to  receive  only  seventy-four  dollars,  took  the  larger 
sum  ($742)  thus  paid  to  him  by  mistake,  and,  without  disclosing  the 
error,  concealed  and  denied  the  over-payment,  and  feloniously  appro- 
priated it  to  his  own  use. 

The  case  then  presents  this  question  :  If  a  party  who  receives  from 
another  money  to  which  he  knows  he  is  not  entitled,  and  which  he 
knows  has  been  paid  to  him  by  mistake,  should  conceal  such  over- 
payment and  appropriate  the  money  to  his  own  use,  intending  thus  to 
cheat  aiijddefraud  the  owner  thereof,  would  he  or  not  be  guilty  of  the 
CTTTmTof  larceny  ?  If  it  be  answered  that  he  would  not,  can  the  ele- 
ment needed  to  make  it  such,  and  which  is  absent,  be  pointed  out? 
The  money,  m  excess  of  that  which  he  is  entitled  to  receive,  is  taken 
without  the  owner's  consent,  and  that  which  is  thus  taken  is  appropri- 
ated to  the  taker's  use  with  intent,  fraudulently,  to  deprive  the  owner 
thereof.  These  two  elements  make  the  crime  of  theft,  and  they  are 
both  present  here. 

It  will  not  do  to  say  that  the  owner  parts  with  the  property  volun- 
tarily, and  therefore  there  is  no  nnlawful  taking.  There  may  be  the 
physical  act  of  the  owner  handing  that  which  is  his  to  another,  but 
there  is  absent  the  intellectual  and  intelligent  assent  to  the  transfer, 
upon  which  the  consent  must  necessarily  depend.  Where  money  or 
property  is  obtained  from  the  owner  by  another  upon  some  false  pre- 
tence, for  a  temporary  use  only,  with  the  intent  to  feloniousl}'  appro- 
priate it  permanently,  the  taking,  though  with  the  owner's  consent, 
is  larceny.  Wherein  do  the  cases  differ?  In  both  there  is  a  physical 
delivery  by  the  owner,  and  in  both  the  taker  knows  that  it  was  given 
for  no  such  purpose  as  he  has  in  mind,  and  yet  he,  unlawfully  and 
wickedly,  in  both  cases,  seeks  to  deprive  the  owner  thereof.  If  the  one 
case  is  larceny,  the  other  is  also. 

So,  too,  the  finder  of  property,  if  he  knows  the  owner  and  conceals 
such  finding,  and  appropriates  it  to  his  own  use,  with  intent  to  deprive 
the  owner  thereof,  is  guilty  of  larceny.  So  in  this  case,  if  the  prisoner 
found,  on  counting  the  money,  that  in  his  possession  to  which  he  knew 
he  was  not  entitled,  and  which  he  also  knew  the  owner  did  not  intend 
to  deliver  to  him,  he  was  bound  to  return  it  to  the  owner,  and  if  he  did 
not,  but  concealed  its  possession  and  sought  to  deprive  the  owner 
thereof,  the  crime  was  complete. 


670  WOLFSTEIN    V.    PEOPLE.  [CHAP.  VIII. 

From  the  evidence  in  tliis  ease,  and  the  verdict  rendered,  we  are 
bound  to  assume  that  the  mistake  was  noticed  and  discovered  bj-  the 
prisoner  at  some  time.  If  the  over-payment  was  observed  in  the  banlv 
when  the  money  was  delivered,  and  the  prisoner  took  it  with  the  intent 
to  cheat  and  defraud  the  owner,  the  crime  was  then  complete."  If,  how- 
ever, the  error  was  not  then  noticed,  but  was  afterward,  and  the  intent 
of  felonious  appropriation  was  then  formed  and  executed,  the  legal 
guilt  of  the  prisoner  was  at  that  time  incurred.  As  in  the  case  of  the 
finder  of  the  lost  article,  the  original  taking  may  be  lawful,  but  legal 
accountability  as  fur  crime  begins  when  the  owner  is  discovered  and 
the  intent  formed  unlawfully  and  feloniously  to  deprive  him  of  the 
possession  thereof. 

The  questions  which  the  case  involves,  and  the  points  to  be  found  by 
the  jury  before  a  verdict  of  guilty  could  be  rendered,  were  properly  stated 
by  the  recorder,  and  the  finding  was  well  warranted  by  the  testimony. 

The  request  to  charge,  made  b^-  the  counsel  of  the  prisoner  at  folio 
eightj'-two,  was  amended,  and  as  amended  was  charged.  There  is  no 
error  here.     The  conviction  of  the  prisoner  is  therefore  affirmed. 

Davis,  P.  J.,  and  Daniels,  J.,  concurred.^ 

Conviction  affirmed. 

1  See  Com.  v.  Eichelberger,  119  Pa.  254.  —  Ed. 


SECT.  IV.J  REGINA    V.    LTTTLE.  67l 


EEGINA   V.   LITTLE. 
Central  Chimin al  Coukt.     1867. 

[RepDited  10  Cox  V.  C.  559.] 

George  Cohen  Little  and  William  Eustace  were  charged  with 
steahng  276  yards  of  carpet,  the  property  of  the  Midland  Railway 
Compain'. 

Three  bales  of  carpet  were  entrusted  to  Froome,  a  carman  In  the 
service  of  the  Midland  Railway  Company,  for  deliveiy  to  Easten  & 
Co.,  Addle  Street.  From  something  Froome  heard  in  Addle  Street  he 
went  to  7  Philip  Lane,  which  leads  out  of  Addle  Street.  There  was  no 
name  up  at  No.  7,  but  it  appeared  as  if  it  had  been  newly  done  up. 
At  No.  7  Froome  saw  the  prisoner  Little  and  asked  him  whether  that 
was  Easten's  of  Addle  Street.  Little  said,  "Yes."  Froome  told  him 
he  had  three  trusses  of  carpet,  and  showed  him  the  way-bill,  which  indi- 
cated that  three  bales  marked  E.  959-61  were  to  be  delivered  to  Flas- 
ten  &  Co.  of  Addle  Street.  Little  told  him  to  bring  them  in,  and  they 
were  brought  in  and  signed  for  b}'  "  T,  C.  Little."  Eustace  appeared 
to  have  rented  the  premises  on  wdiicli  the  goods  were  left,  and  became 
acquainted  with  the  fact  of  their  being  in  his  house  shortly  after  they 
were  so  left,  and  according  to  his  own  account  had  sold  them  to  a  man 
from  whom  he  had  received  no  money,  although  by  his  own  statements 
to  a  witness  he  had  said  they  had  been  left  at  this  place  in  mistake,  and 
did  not  belong  to  him. 

Sleigh^  on  behalf  of  Eustace,  submitted  that  there  was  no  case  of 
larcen}'  made  out,  —  the  Railway  Company-,  in  whom  the  propert}'  was 
laid,  having  parted  not  only  with  the  possession,  but  also  with  the  prop- 
erty in  the  goods,  and  no  trick  having  been  shown  to  have  been  used 
by  Eustace  in  order  to  get  possession  of  them. 

Poland  contended  that  the  Railway  Company,  having  authority  to 
deliver  to  Easten  &  Co.,  had  no  power  to  part  with  the  property  in  the 
goods  to  any  other  parties  ;  that  the  mistake  of  the  carman  in  leaving 
them  at  the  wrong  premises  did  not  deprive  the  company  of  their  prop- 
erty in  them  ;  and  that  the  subsequent  conversion  of  them  by  Eustace 
to  his  own  purposes  was  in  fact  a  larcen}-  of  the  goods  of  the  company, 
just  as  much  as  if  he  had  taken  them  out  of  the  cart  himself. 

Besley,  on  the  same  side,  argued  that  as  the  goods  came  into  the 
possession  of  Little,  he  by  accepting  possession  of  them  might  be 
deemed  a  bailee  for  the  owner,  and  that  directly  Eustace  became  ac- 
quainted with  the  circumstances  and  co-operated  with  him  he  was  acces- 
sary with  him  as  bailee  ;  and  then  if,  contrary  to  that  bailment,  the}' 
jointly  converted  the  goods  to  their  own  purposes,  a  case  of  larceny 
would  be  established.    He  referred  to  Regina  v.  Robson,  9  Cox  C.  C.  29. 

The  Recorder  said  he  should  leave  the  case  to  the  jury,  not  upon 
the  ground  that  the  prisoners  were  bailees,  but  that  the  property  in  the 


672  KEX   V.   MOOEE.  [chap.  VIII. 

goods  had  not  been  parted  with.  The  carman  had  the  limited  author- 
it}'  to  part  with  them  to  Easten  &  Co.  only,  and  by  leaving  them  in 
mistake  the  property*  was  not  really  parted  with. 

Ghdlty, 


SECTION   V. 

Tra7iifer    of    Title, 

REX  V.   MOORE. 
Crown  Case  Reserved.     1784. 

[Reported  Leach  {Ath  ecL),  314.] 

This  was  a  case  reserved  for  tlie  opinion  of  the  twelve  judges  by  Mr. 
Sergeant  Adair,  Recorder,  at  the  Old  Bailey,  in  April  Session,  1784, 
upon  the  trial  of  an  indictment  for  stealing  twent}-  guineas,  and  four 
pieces  of  foreign  gold  coin  called  doubloons,  the  propert3'  of  John 
Field,  in  the  dwelling-house  of  John  Brown. 

The  material  circumstances  of  this  case,  as  they  appeared  in  evidence, 
were  as  follow  :  The  prosecutor,  John  Field,  a  soldier,  just  returned 
from  the  war  in  America,  was  walking  along  James  Street,  Covent 
Garden,  when  a  stranger  joined  company  with  him.  As  they  walked  in 
friendly  conversation  with  each  other  down  Long  Acre,  the  stranger  sud- 
denly stopped  and  picked  up  a  purse  which  was  lying  at  a  door.  After 
they  had  proceeded  about  forty  yards,  "  Come,"  says  the  stranger,  "  we 
will  go  and  drink  a  pot  of  porter,  and  see  what  we  have  picked  up." 
The  prosecutor  was  persuaded  to  comply  ;  and  they  accordingly  went 
into  a  private  room  in  an  adjacent  public  house,  where  the  stranger 
pulled  out  the  purse,  and  from  one  end  of  it  produced  a  receipt,  signed 
"W.  Smith,"  for  £210  "for  one  brilliant  diamond-cluster  ring,"  and 
from  the  other  end  he  pulled  out  the  ring  itself.  A  conversation 
ensued  upon  the  subject  of  their  good  fortune,  during  which  time  the 
prisoner,  Humphrey  Moore,  entered  the  room  ;  and  being  shewed  the 
ring,  he  praised  the  beauty  of  its  lustre,  and  offered  to  settle  the  divi- 
sion of  its  value.  Upon  the  stranger's  lamenting  that  he  had  no  money 
about  him,  the  prisoner  asked  the  prosecutor  if  he  had  any.  The  prose- 
cutor replied  that  he  had  forty  or  fifty  pounds  at  home.  "That  sum 
will  just  do,"'  said  the  prisoner.  A  coach  was  immediately  called,  and 
all  three  were  driven  to  the  prosecutor's  lodgings  at  Chelsea.  The 
prosecutor  and  the  stranger  went  into  the  house  together,  leaving  the 
prisoner  at  the  Five  Fields.  The  prosecutor  took  his  money  from  his 
bureau,  put  it  into  his  pocket,  and  returned  with  the  stranger  to  a 
public  house  in  the  Five  Fields,  Chelsea,  kept  by  John  Brown,  where 
they  again  met  the  prisoner,  who  said,  "I  will  give  you  your  share  of 
the  ring,  if  you  will  be  content  till  to-morrow."  The  prosecutor  put 
down  twenty  guineas  and  four  doubloons,  which  the  stranger  took  up, 


SECT,  v.]  EEX   V.   MOORE.  673 

and  in  return  gave  the  prosecutor  the  ring,  desiring  that  he  would 
meet  him  at  the  same  place  on  the  next  morning  at  nine  o'clock,  and 
promising  that  he  would  then  return  the  twenty  guhieas  and  tlie  four 
doubloons  to  the  prosecutor,  and  also  one  hundred  guineas  for  his  share 
of  the  ring.  Tlie  prisoner  and  the  stranger  went  awaj  together.  The 
prosecutor  attended  the  next  morning  pursuant  to  tlie  appointment,- 
but  neither  of  the  parties  came.     The  ring  was  of  a  very  trilling  value. 

It  was  left  with  the  jury  to  consider  whether  the  prisoner  and  the 
other  man  were  not  confederated  together,  for  the  purpose  of  ol)taining 
money  on  pretence  of  sharing  the  value  of  the  ring,  and  whether  he 
had  not  aided  and  assisted  the  other  man  to  obtain  the  money  by  the 
means  that  were  used  for  that  purpose.  And  the  jury  were  of  opinion 
that  the  prisoner  was  confederating  with  the  person  unknown  for  the 
purpose  of  obtaining  the  money  by  means  of  the  ring,  and  did  therefore 
aid  and  assist  the  person  unknown  in  obtaining  the  twenty  guineas  and 
the  four  doubloons  from  the  prosecutor.  They  accordingly  found  him 
guilt}-  of  stealing,  but  not  in  the  dwelling-house,  subject  to  the  opinion 
of  the  twelve  judges  whether  it  was  felony. 

On  the  first  day  of  Michaelmas  Term,  1784,  all  the  judges,  except 
Lord  Mansfield,  assembled  at  Lord  Loughborough's  chambers  to  con- 
sult upon  this  case  ;  and  in  the  December  Session  following,  Mr.  Jus- 
tice WiLLES  delivered  their  opinion  at  the  Old  Bailey'  to  the  following 
effect:  all  the  judges  agreed  that  in  considering  the  nature  of  larceny 
it  was  necessary-  to  attend  to  the  distinction  between  the  parting 
with  the  possession  only,  and  the  parting  with  the  property ;  that  ia 
the  first  case  it  is  felon}-,  and  in  the  last  case  it  is  not.  Upon  the  cir- 
cumstances of  the  present  case  two  of  the  judges^  were  of  opinion 
that  the  doubloons  were  to  be  considered  as  money,  and  that  the  whole 
was  a  loan  on  the  security  of  the  ring,  which  the  prosecutor  believed  to 
be  of  much  greater  value  than  the  mone}-  he  advanced  on  it,  and  there- 
fore that  he  had  voluntaril}-  parted  with  the  property  as  well  as  with 
the  possession  of  the  doubloons.  But  nine  of  the  judges  were  clearl}'' 
of  opinion  that  it  was  felony,  for  they  thought  the  twenty  guineas  and 
the  four  doubloons  were  deposited  in  the  nature  of  a  pledge  till  the  half 
of  the  supposed  value  of  the  ring  was  paid  to  the  prosecutor,  and  not  as 
a  loan  ;  and  therefore  he  had  parted  with  the  possession  only,  and  not 
with  the  propert}',  —  more  especially  as  to  the  doubloons,  which  he 
clearly  understood  were  to  be  returned  the  next  day  in  specie  ;  and  thej' 
could  not  distinguish  this  case  from  The  King  v.  Patch  in  this  court  in 
Februar}-  Session,  1782,  and  the  King  v.  Pear,  in  September  Session, 
1779.  The  majority  of  the  judges,  therefore,  were  of  opinion  that 
this  case  had  been  properl}-  left  to  the  jury,  and  that  the  prisoner  waa 
guilty  of  felony. 

The  prisoner  was  accordingly  transported. 

^  Lord  Loughborough,  and  Skinner,  C.  B. 


674  REGINA   V.    PRINCE.  [CHAP.  VIII. 


REX   V.   ATKINSON. 
Crown  Case  Reserved.     1799. 

[Reported  2  East  P.  C.  673.] 

James  William  Atkinson  was  indicted  for  stealing  two  bank-notes, 
the  property  of  AVilliam  Dunn,  against  the  statute.  It  appeared  that 
the  prisoner  sent  one  Dale  (to  whom  he  was  unknown)  with  a  letter 
directed  to  Dunn  ;  bidding  Dale  to  tell  Dunn  that  he  brought  the 
letter  from  Mr.  Broad,  and  to  bring  the  answer  to  him  (the  prisoner) 
in  the  next  street,  where  he  would  wait  for  him.  Dale  accordingly 
carried  to  Dunn  the  letter,  which  was  written  in  the  name  of  Broad, 
a  friend  of  Dunn's,  soliciting  the  loan  of  £3  for  a  few  days,  and 
desiring  that  the  money  might  be  inclosed  back  in  the  letter  imme- 
diately. Dunn  thereupon  sent  the  bank-notes  in  question,  inclosed  in 
a  letter  directed  to  Broad,  and  delivered  the  same  to  Dale,  who  deliv- 
ered them  to  the  prisoner  as  he  was  first  ordered.  The  letter  turned 
out  to  be  an  imposition.  It  Avas  objected  at  the  trial  that  this  was  no 
felony,  because  the  absolute  dominion  of  the  property  was  parted 
with  by  the  owner,  though  induced  thereto  by  means  of  a  false  and 
fraudulent  pretence.  And  on  reference  to  the  judges  after  conviction, 
all  present  held  that  it  was  no  felony,  on  the  ground  that  the  property 
was  intended  to  pass  by  the  delivery  of  the  owner  ;  and  that  this  case 
came  within  the  Stat.  33  H.  8.  c.  1,  against  false  tokens,  which  partic- 
ularly speaks  of  counterfeit  letters.^ 


REGINA   V.   PRINCE. 

Crown  Case  Reserved.     1868. 

[Reported  Law  Reports  1  Croum  Cases  Reserved,  150.] 

The  following  case  was  stated  by  the  Common  Sergeant :  — 
The  prisoner  was  tried  before  me  at  the  August  session  of  the  Cen- 
tral Criminal  Court  on  an  indictment  charging  him,  in  the  first  count, 
with  stealing  money  to  the  amount  of  £100,  the  property  of  Henry 
Allen  ;  in  the  second  count,  with  receiving  the  same,  knowing  it  to 
have  been  stolen  ;  and  in  two  other  counts  the  ownership  of  the  money 
was  laid  in  the  London  and  Westminster  Bank. 

It  appeared  in  evidence  that  the  prosecutor,  Henry  Allen,  had  paid 
moneys  amounting  to  £900  into  the  London  and  Westminster  Bank 
on  a  deposit  account  in  his  name,  and  on  the  27th  of  April,  1868,  that 

1  Arc.  Rex  I'.  Colman,  Leach  (4th  ed.)  303  n. ;  Kelly  v.  People,  6  Hun,  509; 
Kellogg  V.  State,  26  Oh.  St.  15.     See  Reg.  v.  Middleton,  L.  R.  2  C.  C.  38,  ante.  — Ed. 


SECT.  V.J  REGINA    V.  PRINCE.  ()75 

sum  was  standing  to  his  credit  at  tliat  bank.  On  that  day  the  wife  of 
Henry  Allen  presented  at  the  banlv  a  forged  order  purporting  to  be 
the  order  of  the  said  Henry  Allen,  for  payment  of  the  deposit,  and  the 
casliier  at  the  bank,  believing  the  authority  to  be  genuine,  paid  to 
her  the  deposit  and  interest  in  eight  bank  notes  of  £100  each,  and  other 
notes.  Among  the  notes  of  £100  was  one  numbered  72,799,  dated  the 
19th  of  November,  1867. 

On  the  first  of  July,  18G8,  the  wife  of  Henry  Allen  left  him  and 
bis  house,  and  she  and  the  prisoner  were  shortly  afterwards  found  on 
board  a  steamboat  at  Queenstown  on  its  way  from  Liverpool  to  New 
York,  passing  as  Mr.  and  Mrs.  Prince,  Mrs.  Allen  then  having  in  her 
possession  nearly  all  the  remainder  of  the  notes  obtained  from  tlie 
bank.  The  note  for  £100,  No.  72,799,  was  proved  to  have  been  paid 
away  bj'  the  prisoner  in  payment  for  some  sheep  in  Ma}',  1868,  and 
he  said  he  had  it  from  Mrs.  Allen. 

Upon  this  evidence  it  was  objected  by  prisoner's  counsel  that  the 
counts  alleging  the  property  to  be  in  Henr}-  Allen  must  fail,  as  the  note 
had  never  been  in  his  possession  ;  and  that  as  to  the  other  counts  the 
evidence  did  not  show  any  larcen}'  of  the  note  from  the  bank  b}'  the 
wife,  but  rather  an  obtaining  b}'  forgery  or  false  pretences  bj"  her,  and 
that  the  receipt  by  the  prisoner  from  her  was  not  a  receipt  of  stolen 
property.  I  held,  however,  that  the  forged  order  presented  by  the  wife 
was  under  the  circumstances  a  mere  mode  of  committing  a  larcenj' 
against  the  London  and  Westminster  Bank,  and  that  the  prisoner  was 
liable  to  be  convicted  on  the  fourth  count. 

The  jury  found  the  prisoner  guilty  on  that  count  and  I  respited  judg- 
ment and  reserved  for  the  consideration  of  the  court  the  question 
whether  the  obtaining  the  note  from  the  bank  by  Mrs.  Allen  under  the 
circumstances  stated  was  a  larceny  by  her ;  if  not,  the  conviction  must 
be  reversed.^ 

BoviLL,  C.  J.  I  am  of  opinion  that  this  conviction  cannot  be  sus- 
tained. The  distinction  between  larceny  and  false  pretences  is  mate- 
rial. In  larceny  the  taking  must  be  against  the  will  of  the  owner.  That 
is  of  the  essence  of  the  offence.  The  cases  cited  by  Mr.  Collins  on  be- 
half of  the  prisoner  are  clear  and  distinct  upon  this  point,  showing  that 
the  obtaining  of  property  from  its  owner  or  his  servant  absolutel}'  au- 
thorized to  deal  witli  it  by  false  pretences  will  not  amount  to  larceny. 
The  cases  cited  on  the  other  side  are  cases  where  the  servant  had  only 
a  limited  authority  from  his  master.  Here,  however,  it  seems  to  me 
that  the  bank  clerk  had  a  general  authority  to  part  with  both  the  prop- 
erty* in  and  possession  of  his  master's  monej^  on  receiving  what  he  be- 
lieved to  be  a  genuine  order,  and  that  as  he  did  so  part  with  both  the 
property  in  and  possession  of  the  note  in  question  the  offence  commit- 
ted bj'  Mrs.  Allen  falls  within  the  cases  which  make  it  a  false  pretence 
and  not  a  larceny,  and  therefore  the  prisoner  cannot  be  convicted  of 
knowingl}^  receiving  a  stolen  note. 

1  Arguments  of  counsel  are  omitted. 


G76  REGINA   V.    PRINCE.  [CHAP.  VIII. 

Channell,  B.  I  am  of  the  same  opinion.  The  cases  cited  on  one 
side  and  the  other  are  distinguishable  on  the  ground  that  in  one  class 
of  cases  the  servant  had  a  general  authority  to  deal  with  his  master's 
piopertj-,  and  in  the  other  class  merel}'  a  special  or  limited  authority'. 
If  the  bank  clerk  here  had  received  a  genuine  order  he  would  have  paid 
the  monej-  for  his  master  and  parted  with  the  property,  and  the  trans- 
action would  have  really  been  what  it  purported  to  be.  If,  however, 
the  clerk  makes  a  mistake  as  to  the  genuineness  of  a  signature,  never- 
tiieless  he  has  authority  to  decide  that  point;  and  if  he  pays  money  on 
a  forged  order  the  property  therein  passes  from  the  master  and  cannot 
be  said  to  have  been  stolen. 

Byles,  J.  I  am  of  the  same  opinion.  I  would  merel}'  sa}'  that  I 
ground  m}-  judgment  purel}'  on  aiithorit}'. 

Blackburx,  J.  I  also  am  of  the  same  opinion.  I  must  sa}'  I  can- 
not but  lament  that  the  law  now  stands  as  it  does.  The  distinction 
drawn  between  larcen}-  and  false  pretences  —  one  being  made  a  felony 
and  the  other  a  misdemeanor,  and  j'et  the  same  punishment  attached 
to  each  —  seems  to  me,  I  must  confess,  unmeaning  and  mischievous. 
The  distinction  arose  in  former  times,  and  I  take  it  that  it  was  then  held 
in  favor  of  life  that  in  larcen}-  the  taking  must  be  against  the  will  of  the 
owner,  larceny-  then  being  a  capital  offence.  However,  as  the  law  now 
stands,  if  the  owner  intended  the  propert}'  to  pass,  though  he  would  not 
so  have  intended  had  he  known  the  real  facts,  that  is  sufficient  to  pre- 
vent the  offence  of  obtaining  another's  property'  from  amounting  to 
larcen}' ;  and  where  the  servant  has  an  authority  co-equal  with  his 
master's  and  parts  with  his  master's  property,  such  property  cannot  be 
said  to  be  stolen  inasmuch  as  the  servant  intends  to  part  with  the 
propert}'  in  it.  If,  however,  the  servant's  authority  is  limited,  then  he 
can  onl}-  part  with  the  possession,  and  not  with  the  propert}' ;  if  he  is 
tricked  out  of  the  possession  the  offence  so  committed  will  be  larcen}'. 
In  Regina  v.  Longstreeth,  1  Moody,  C.  C.  137,  the  carrier's  servant  had 
no  authority  to  part  with  the  goods  except  to  the  right  consignee.  His 
authority  was  not  generally  to  act  in  his  master's  business,  but  limited 
in  that  way.  The  offence  was  in  that  case  held  to  be  larceny  on  that 
ground,  and  this  distinguishes  it  from  the  pawnbi'oker's  case  Regina  *>. 
Jackson,  1  Moody  C.  C.  119,  which  the  same  judges,  or  at  any  rate 
some  of  them,  had  shortly  before  decided.  There  the  servant  from 
whom  the  goods  were  obtained  had  a  general  authority  to  act  for  his 
master,  and  the  person  who  obtained  the  goods  was  held  not  to  be 
guilty  of  larceny.  So  in  the  present  case  the  cashier  holds  the  money 
of  the  bank  with  a  general  authority  from  the  bank  to  deal  with  it. 
He  has  authority  to  part  with  it  on  receiving  what  he  believes  to  be  a 
genuine  order.  Of  the  genuineness  he  is  the  judge  ;  and  if  under  a 
mistake  he  parts  with  money  he  none  the  less  intends  to  part  with 
the  property  in  it,  and  thus  the  offence  is  not,  according  to  the  cases, 
larceny,  but  an  obtaining  by  false  pretences.  The  distinction  is  in- 
scrutable to  my  mind,  but  it  exists  in  the  cases.     There  is  no  statute 


SECT,  v.]  REGINA   V.    BUCKMASTER.  677 

enabling  a  count  for  larceny  to  be  joined  with  one  for  false  pretences ; 
and  as  the  prisoner  was  indicted  for  the  felony  the  conviction  must  be 
quashed. 

Lush,  J.  I  also  agree  that  the  conviction  must  be  quaslied.  I 
ground  my  judgment  on  the  distinction  between  the  cases  which  has 
been  pointed  out.  The  cashier  is  placed  in  the  bank  for  the  very  pur- 
pose of  parting  with  the  money  of  the  bank.  He  has  a  general  author- 
ity to  act  for  the  bank,  and  therefore  that  which  he  does,  his  masters  the 
bankers  do  themselves  through  him.  t'oncictiou  'juanhed.^ 


REGINA  V.   BUCKMASTER. 
Crown  Case  Reskrved.     1887. 

[Reported  16  Cox  C.  C.  339.] 

This  was  a  case  stated  for  the  opinion  of  the  Court  by  the  Chair- 
man of  the  Court  of  Quarter  Sessions  for  the  County  of  Berks,  which 
was  as  follows  :  — 

1.  At  the  General  Quarter  Sessions  for  the  County  of  Berks,  held  on 
the  27th  day  of  June,  1887,  Walter  Buckmaster  was  tried  before  me 
upon  an  indictment,  omitting  formal  parts,  which  charged  that  he 
did  on  the  9th  day  of  June,  1887,  feloniously  steal,  take,  and  carry 
away  certain  money  of  the  moneys  of  John  Rymer. 

2.  It  was  proved  that  the  prisoner  and  another  man,  at  about  3  p.  m. 
on  the  9th  day  of  June  last,  during  the  Ascot  Race  Meeting,  were  the 
only  persons  standing  upon  a  platform  or  stand  made  to  represent 
"  safes."  or  iron  safe  chests.  The  words  "  Griffiths,  the  Safe  Man," 
were  printed  upon  it.  The  stand  was  outside  the  course,  on  a  spot  on 
Ascot  Heath  where  carriages  were  placed,  and  was  not  within  any 
betting  inclosure  or  ring. 

3.  The  prisoner,  with  a  book  in  his  hand,  was  calling  out,  "  Two  to 
one  against  the  field,"  just  before  a  race  was  about  to  be  run.  Rymer 
went  up  to  him  and  asked,  "  What  price  Bird  of  Freedom  ?  "  to  which 
he  replied,  "  Seven  to  one  to  win."  Rymer  then  deposited  five  shillings 
with  Buckmaster,  who  told  him  that  if  the  horse  won  he  (Rymer)  w^ould 
win  thirty-five  shillings  and  get  his  own  five  shillings  back.  He  also 
deposited  another  five  shillings  with  Buckmaster,  who  told  him  that  he 
would  have  fifteen  shillings  back,  including  his  own  five  shillings,  if  the 
horse  was  first  or  second.  The  man  wdio  was  with  Buckmaster  and 
was  acting  with  him,  received  the  money,  and  the  latter,  with  whom 
all  the  conversation  took  place,  appeared  to  take  down  the  bet  in  his 
book,  and  gave  Rymer  a  card-ticket  with  the  words  "  Griffiths,  Safe 
Man"  upon  it. 

1  See  People  v.  McDonald,  43  N.  Y.  61.  — Ed. 


678  EEGINA    V.   BFCKM ASTER.  [CHAP.  VIII. 

4.  While  the  race  was  being  run,  the  prisoner  and  the  other  man 
were  seen  by  one  of  the  witnesses  to  walk  quietly  away.  They  were 
followed  for  about  twenty  yards,  and  on  the  witness  at  once  returning, 
the  stand  had  gone.  The  horse  Bird  of  Freedom  won  the  race, 
and  thereupon  Rymer  went  back  to  the  place  where  the  stand  had  been, 
and  he  found  that  the  prisoner  and  the  other  man  had  gone.  He  waited 
there  for  half  an  hour  and  then  left.  Much  later  in  the  afternoon 
Rymer  saw  the  prisoner  on  another  part  of  Ascot  Heath  and  said,  "  1 
want  £2  Ids.  from  you."  The  prisoner  said  he  knew  nothing  about  it. 
Upon  being  told  by  Rymer  that  he  would  be  detained,  he  admitted  the 
bet  and  said  he  had  not  the  money,  but  that  he  was  only  the  clerk 
and  could  take  the  prosecutor  to  the  man  who  had  it.  He  was  then 
taken  into  custody,  and  upon  him  were  found  card-tickets  with  the 
words  "  Gritliths,  the  Safe  Man"  upon  them.  It  was  elicited  from 
Rymer  in  cross-examination  that  he  would  have  been  satisfied  if  he  did 
not  receive  back  the  same  particular  coins  he  had  deposited. 

5.  At  the  close  of  the  case  for  the  prosecution,  on  behalf  of  the 
prisoner  it  was  submitted  that  Rymer  having  parted  voluntarily  with 
the  money  there  was  no  evidence  of  larcen}^  nor  of  any  taking  by 
prisoner,  and  none  of  obtaining  by  false  pretence  or  trick. 

The  learned  chairman  declined  to  withdraw  the  case  from  the  jury, 
but  assented  to  state  this  case.  No  evidence  at  all  was  called  on  the 
part  of  the  prisoner,  and  a  verdict  of  guilty  was  returned. 

The  question  for  the  opinion  of  the  court  was  whether  there  was  any 
evidence  to  be  left  to  the  jury. 

Keith-Frith,  for  the  prisoner.  In  this  case  the  prisoner  might  per- 
haps have  been  convicted  of  obtaining  money  by  false  pretences.  But 
he  has  not  been  indicted  for  false  pretences  ;  and  although  upon  an 
indictment  for  false  pretences  a  prisoner  can  be  convicted  of  larceny, 
he  cannot  upon  an  indictment  for  larceny  be  convicted  of  false  pre- 
tences. There  was  no  larceny  here,  because  here  there  was  no  taking 
invito  domino.  [Lord  Coleridge,  C.J. — Why  cannot  it  be  larceny 
by  a  trick?]  In  larceny  by  trick,  although  the  possession  is  parted 
with,  the  ownership  does  not  pass.  But  here  the  prosecutor  did  intend 
to  part  with  the  ownership  of  the  specific  coins  he  gave  the  prisoner, 
and  therefore  the  ownership  in  them  passed.  [Hawkins,  J.  —  No  ;  the 
prosecutor  merely  intended  to  give  the  prisoner  the  coins  as  a  deposit 
to  abide  the  event  of  the  race.]  If  that  were  so,  then  the  person  who 
makes  a  bet  with  a  Geo.  III.  sovereign  can  insist  upon  that  particular 
coin  being  returned  to  him  if  he  wins.  [Smith,  J.  —  Although  the 
whole  thing  was  a  sham,  do  you  sa}'  that  the  prosecutor  intended  to 
part  with  his  coin  ?]  No  ;  but  if  the  ownership  was  obtained  by  means 
of  a  trick  as  well  as  the  possession,  the  prisoner  ought  to  have  been 
indicted  for  false  pretences.  Here  the  prosecutor  said  he  would  have 
been  satisfied  had  he  not  got  the  same  coins  back  ;  therefore  he  clearly 
intended  that  the  property  in  the  particular  coins  should  pass.  [Haw- 
kins, J.  — Is  not  Rex  v.  Robson,  Russ.  &,  Ry.  413,  an  authority  that  the 


SECT,  v.]  REOINA.   V.   BUCKMASTER.  679 

property  did  not  pass  under  the  circumstances  ?]  No  ;  for  there  the 
notes  were  never  intended  to  be  changed  ;  they  were  merely  deposited 
as  a  stake.  Suppose  here  that  Bird  of  Freedom  had  k)st,  the 
prisoner  would  have  been  entitled  to  keep  the  5s.  and  could  not  have 
been  indicted  for  stealing  his  own  property  ;  and  therefore  as  the 
property  passed,  there  could  be  no  larceny,  and  the  conviction  should 
be  quashed. 

No  counsel  appeared  on  behalf  of  the  prosecution. 

LoKD  Coleridge,  C.  J.  1  am  of  opinion  that  in  this  case  the  con- 
viction is  right  and  should  be  atllrmed.  The  only  question  left  to  us 
by  the  learned  chairman  is,  whether  there  was  any  evidence  that  the 
prisoner  had  been  guilty  of  larceny  to  be  left  to  the  jury.  In  my 
opinion  there  was  abundant  evidence  from  which  the  jury  might  infer 
that  the  prisoner  was  guilty.  On  behalf  of  the  prisoner  it  has  been 
argued  that  there  is  no  doubt  that  the  money  was  intended  to  be  parted 
with,  and  that  not  only  was  the  possession  of  the  money  parted  with 
but  the  property  in  it  was  also  intended  to  be  parted  with  ;  and  that 
therefore,  as  the  property  was  intended  to  be  parted  with,  there  could 
be  no  larceny,  but  only  the  offence  of  obtaining  money  by  false  pre- 
tences ;  and  that,  although  the  prisoner,  if  he  had  been  indicted  for  the 
false  pretences,  could  have  been  convicted  of  larceny,  the  converse  does 
not  hold  good,  and  he  cannot,  upon  an  indictment  for  larceny,  be  con- 
victed of  obtaining  money  by  false  pretences.  To  that  there  seems  to 
me  to  be  two  answers  :  the  first,  that,  supposing  there  was  an  intention 
on  the  part  of  the  prosecutor  to  part  with  the  property  in  the  coin,  in 
order  to  pass  the  property  from  him  to  the  prisoner  there  must  have 
been  a  contract  under  which  it  could  pass  ;  for  a  change  of  property 
could  only  have  taken  place  by  virtue  of  a  contract  of  some  sort,  and 
a  contract,  by  the  very  meaning  of  the  word,  must  be  the  bringing 
together  of  two  minds.  Now,  here  there  never  was  any  bringing 
together  of  the  minds  of  the  prosecutor  and  the  prisoner  in  the  shape 
of  a  contract ;  for  supposing  the  prosecutor  to  have  intended  to  have 
parted  with  his  money,  he  only  intended  to  do  so  on  the  assumption 
that  the  prisoner  intended  to  deal  honestly  with  the  money ;  whereas, 
on  the  contrary,  the  prisoner  never  intended  to  do  that,  but  as  the 
evidence  shows  clearly,  intended  to  do  that  which  the  prosecutor  never 
for  a  moment  consented  to.  No  contract  ever  existed  therefore  ;  and 
there  is  high  authority  that,  under  such  circumstances,  the  property  in 
the  article  does  not  pass.  In  Rex  v.  Oliver,  Russ.  on  Crimes,  vol.  ii. 
p.  170,  which  was  a  case  tried  before  Wood,  B.,  the  prosecutor  there 
had  a  quantity  of  bank-notes,  which  he  wanted  to  change,  and  the 
prisoner  offered  to  change  them  for  him.  The  prosecutor  gave  him  the 
bank-notes,  on  which  the  prisoner  decamped,  and  the  prosecutor  never 
got  any  money  in  return.  It  was  argued  that,  as  the  prosecutor  clearly 
intended  to  pass  the  property  in  the  bank-notes  to  the  prisoner,  he 
could  not  be  convicted  of  larceny.  But  Wood,  B.,  held  that  the  case 
clearly  amounted  to  larceny  if  the  jury  believed  that  the  intention  of 


580  REGINA    V.    BUCKMASTEK.  [CHAP.  VIII. 

the  prisoner  was  to  run  away  with  the  notes  and  never  to  return  with  the 
gold,  and  that  whether  the  prisoner  had  at  the  time  the  animus  fa randi 
was  the  sole  point  upon  which  the  question  turned,  for  if  the  prisoner 
had  at  the  time  the  animus  furandi,  all  that  had  been  said  respecting 
the  property  having  been   parted   with  by  the   delivery  was   without 
foundation,  as  the  property  in  truth  had  never  been  parted  with  at  all. 
The  learned  judge  further  said  that  "  a  parting  with  the  property  in 
goods  could  only  be  effected  by  contract,  which  required  the  assent  of 
two  minds  ;  but  that  in  this  case  there  was  not  the  assent  of  the  mind, 
either  of  the  prosecutor  or  of  the  prisoner,  the  prosecutor  only  meaning 
to  part  with  his  notes  on  the  faith  of  having  the  gold  in  return,  and  the 
prisoner  never  meaning  to  barter,  but  to  steal."    It  appears  to  me  that 
that  is  not  only  good  sense  but  very  sound  law,  and  it  is  decisive  of 
the  point  raised  here.     I  am  of  opinion  therefore  that  there  is  evidence 
of  larceny  here,  and  that  the  true  view  to  take  of  this  case  is  that  the 
property  did  not  pass.     The  second  answer  appears  to  me  to  be  found  in 
the  case  of  Rex  v.  Robson,  Russ.  &  Ry.  413,  which  is  even  more  like  this 
ease  than  the  case  I  have  already  cited.     In  Rex  v.  Robson  the  prose- 
cutor was  induced  by  the  prisoner's  confederates  to  make  a  bet  with  one 
of  them  and  to  part  with  a  number  of  bank-notes  to  another  of  the 
confederates,  who  passed  it  on  to  the  prisoner  to  hold  as  stake-holder. 
The  prosecutor  having  apparently  lost  the  bet,  the  money  was  given  by 
the  prisoner  to  the  confederate  with  whom  the  bet  was  made,  and  he 
went  away.     Upon  these  facts  it  was  held  that,  where  there  is  a  plan 
to  cheat  a  man  of  his  property  under  color  of  a  bet,  and  he  parts 
with  the  possession  only  to  deposit  the  property  as  a  stake  with  one  of 
the  confederates,  the  taking  by  such  confederates  is  felonious.     The 
case  was  tried  by  Bayley,  J.,  who  told  the  jury  that  if  they  thought, 
when  the  notes  were  received,  there  was  a  plan  and  concert  between 
the  prisoners  that  the  prosecutor  should  never  have  them  back,  but 
that  they  should  keep  them  for  themselves,  under  the  false  color  and 
pretence  that  the  bet  had  been  won,  he  was  of  opinion  that  in  point  of 
law  it  was  a  felonious  taking  by  all.     The   jury  convicted,  but  the 
learned  judge  thought  proper,  as  the  case  came   very  near   Rex   v. 
Nicholson,  2  East  P.  C.  669,  to  submit  it  to  the  consideration  of  the 
judges,  making  the  distinction  between  the  cases  that  in  Rex  v.  Robson, 
at  the  time  the  prisoners  took  the  prosecutor's  notes,  he  parted  with 
the  possession  only  and  not  the  property  ;  and  that  the  property  was- 
only  to  pass  eventually,  if  the  confederate  really  won  the  wager  ;  and 
chat  the  prosecutor  expected  to  have  been  paid  had  the  confederate 
guessed  wrongly.     Ten  of  the  judges  considered  the  case  and  held  the 
conviction    right,  because  at  the  time  of   the  taking   the   prosecutor 
parted  only  with  the  possession  of  the  money.     Now,  the  true  view  of 
the  case  here  is  exactly  like  the  view  which  the  judges  took  in  that 
case.     In  this  case  the  prosecutor  deposits  money  with  the  prisoner, 
never  intending  to  part  with  that  money,  but  being  told  that  in  a  certain 
event  he  was  to  have  that  money  and  something  more  added  to  it  givea 


SECT.  V.J  EEGINA    V.   BUCKMARTER.  681 

back  to  him.  The  prisoner,  on  the  other  hand,  took  the  money,  never 
intending  to  give  it  back,  and  decamped  with  it.  It  ap[)ears  to  me, 
therefore,  that  the  possession  only  of  tlie  money  was  parted  with,  and 
that  the  prosecutor  never  intended  to  part  with  the  property  in  it.  No 
doubt  had  he  had  money  given  baclv  to  him,  he  would  not  have  inquired 
into  the  question  whether  his  own  5s.  came  back  to  him  or  not.  IJut 
that  does  not  affect  the  question  whether,  when  he  placed  the  coins 
in  the  prisoner's  hands,  he  intended  to  pass  the  property  in  tliem  to  the 
prisoner.  At  all  events  there  was  plenty  of  evidence  from  which 
the  jury  could  find  that  such  was  not  his  intention ;  and  in  my  opinion 
the  conviction  should  be  affirmed. 

Pollock,  B.     I  have  nothing  to  add. 

Manisty,  J.  I  have  very  few  words  to  say.  I  take  it  on  the  author- 
ities cited  by  my  Lord  that  it  is  settled  law  that  if  a  man  parts  with  the 
possession  of  money  but  does  not  intend  to  part  with  the  property  in 
it,  and  the  person  receiving  the  money  intends  at  that  time  to  steal  the 
money  in  a  certain  event,  that  there  then  is  larceny.  That  is  the 
ground  on  which  I  think  that,  as  in  this  case  the  prosecutor  never 
intended  to  part  with  his  5s.  except  in  the  event  which  did  not  occur 
and  the  prisoner  never  intended  to  return  the  money,  the  prisoner  was 
guilty  of  larceny. 

Hawkins,  J.  The  only  question  for  our  determination  is,  whether 
there  was  any  evidence  to  go  to  the  jury.  I  am  of  opinion  that  there 
was  abundant  evidence.  I  think  the  evidence  pointed  to  this,  that  the 
whole  of  the  prisoner's  conduct  pointed  to  an  original  and  preconcerted 
plan  of  the  prisoner  to  obtain  possession  of  and  keep  the  money  of 
the  prosecutor  ;  and  that  the  prosecutor  never  intended  on  such  terms 
to  part  with  the  property  in  his  os.  I  think  therefore  that  there  was 
abundant  evidence  of  larceny  in  this  case,  and  that  the  conviction  should 
be  affirmed. 

Smith.  J.  I  think  that  it  is  clear  the  prosecutor  never  intended  to 
part  with  the  property  in  the  5s,  except  on  condition  that  a  bona  fide 
bet  was  made.  I  think  also  that  there  is  evidence  that  at  the  time  the 
prosecutor  handed  the  5s.  to  the  prisoner,  the  prisoner  intended  to  keep 
possession  of  the  money,  whether  Bird  of  Freedom  lost  or  won.  He 
therefore  obtained  the  possession  of  the  prosecutor's  money  by  means 
of  a  preconcerted  and  premeditated  fraud  ;  in  other  words,  by  a  trick. 
There  was  therefore  abundant  evidence  of  larceny,  and  in  my  opinion 
the  conviction  should  be  affirmed.^  Conviction  affirmed. 

1  Stinson  v.  People,  43  111.  397  ;  Grunson  v.  State,  89  Ind.  533  ;  Miller  v.  Com., 
78  Ky.  1.5  ;  People  v.  Shaw,  .57  Mich.  403 ;  Loomis  v.  People,  67  N.  Y.  322.  But  see 
Rex  V.  Nicholson,  Leach  {4th  ed.),  610;  Reg.  v.  Riley,  1  Cox  C.  C.  98.  —  Ed. 


682  KEGINA    V.    SOLOMONS.  [CHAP.  VIII. 

REGINA  V.    SOLOMONS. 
Crown  Case  Reserved.     1890. 

[Reported  17  Cox  C.  C.  93.] 

Case  stated  b}'  the  Deputj'-chairman  of  the  London  County  Quarter 
Sessions,  as  follows  :  — 

The  above  prisoner  was  tried  before  me  on  the  20th  day  of  Februar}', 
1890,  upon  an  indictment  which  charged  that  he  "  did  on  the  2d  day  of 
February,  1890,  feloniously  steal,  take,  and  carr}-  away  three  shillings 
and  sixpence,  the  property  of  Edward  Dav}-."  The  second  count 
charged  him  "  with  feloniously  receiving  the  same,  well  knowing  it  was 
stolen." 

The  prosecutor  Edward  Dav}'  deposed  as  follows  :  — 

That  on  the  2d  da}-  of  February'  in  this  j'ear  I  was  near  Aldgate, 
when  the  prisoner  came  up  to  me.  At  that  time  there  was  another  man 
standing  a  little  way  off  selling  purses.  The  prisoner  said,  "  I  '11  show 
you  how  the  trick  is  done."  He  then  opened  a  purse  which  he  had  in 
his  hand,  and  putting  three  shiUings  in  his  other  hand  said,  "  You  see 
there  are  three  shillings  there."  I  said,  "  Yes."  He  then  dropped  them, 
or  appeared  to  do  so,  into  the  purse.  He  then  asked  me  if  I  would 
give  him  one  shilling  for  the  three  shillings  and  the  purse.  I  hesitated, 
but  afterwards  gave  him  a  shilling  for  the  three  shillings  and  the 
purse,  and  put  the  purse  into  my  pocket.  He  then  pulled  out  another 
purse,  and  showing  two  half-crowns  in  his  hand,  put  them,  or  appeared 
to  put  them,  into  the  purse,  and  asked  me  if  I  would  give  him  half  a 
crown  for  the  two  half-crowns  and  the  purse.  I  gave  him  half  a  crown. 
The  prisoner  then  said,  "  Just  to  show  that  I  am  not  cheating,  and  to 
let  the  public  see  it,  you  had  better  give  me  one-and-sixpence  for  ni}*- 
Belf "  which  I  did.  I  then  walked  a  little  distance  awa}-  and  opened 
the  first  purse  which  he  had  said  contained  three  shillings,  and  found 
only  three  halfpence.  In  the  second  purse,  which  was  said  to  contain 
two  half-crowns,  I  found  two  penn}'  pieces  onl^'. 

In  cross-examination  the  prosecutor  stated  that  the  prisoner  prom- 
ised him  three  shillings  for  one  shilling,  that  he  bought  the  three 
shillings  and  the  purse,  that  he  did  not  buy  on  speculation,  and  that 
he  was  willing  to  take  the  half-crown,  if  the  prisoner  was  willing  to 
part  with  it ;  that  he  never  said  that  he  parted  with  his  money  to  see 
how  the  trick  was  done,  and  that  at  the  time  he  was  on  his  way  to  the 
Tabernacle  to  hear  Mr.  Spnrgeon. 

Another  witness,  named  Norfolk,  in  every  particular  corroborated  the 
stor}^  but  his  evidence  will  be  unnecessary  to  give  in  detail. 

A  constable  named  Burnett  was  also  called,  and  stated  that  he  took 
the  prisoner  into  custody  for  stealing  three  shillings  and  sixpence. 
Prisoner  in  reply  said,  "  Serve  him  right;  more  fool  he  to  bu}*  them." 
On  being  searched  there  were  found  on  prisoner  seven  purses  and 
eleven  shillings  in  silver.     The  prosecutor  on  being  recalled  stnted  that 


SECT,  v.]  REGINA    V.    SOLOMONS.  683 

he  did  not  care  for  the  purses,  but  that  he  wanted  the  money  which 
the  prisoner  promised. 

Upon  this  state  of  facts  it  was  argued  b^-  counsel  for  the  prisoner 
that  the  prisoner  ought  not  to  have  been  indicted  for  larceny,  because 
tlie  prosecutor  voluntarily  parted  with  his  mone}',  both  the  possession 
and  the  ownership,  in  return  for  the  money  which  he  hoped  to  get- 
Cases  were  quoted  in  support  of  this  statement. 

I  overruled  the  objection,  and  pointed  out  that  in  my  opinion  there 
was  no  difference  between  the  present  state  of  facts  and  the  crime  of 
larcenv  as  committed  in  the  case  of  ''ring  dropping,"  and  that  although 
the  indictment  might  have  been  framed  for  obtaining  mone}-  by  false 
pretences,  the  present  one  was  equally  good  to  maintain  the  crime  of 
larceu}'  by  a  trick. 

The  verdict  was  as  follows:  "  We  find  the  prisoner  guilt}*  of  '  ob- 
taining' the  money  hy  a  trick."  I  asked  the  jurj-  what  they  meant; 
did  the}-  mean  tliat  the  prisoner  committed  the  crime  of  larceny  by 
a  trick  as  explained  by  me?  and  they  answered  in  the  affirmative. 

I,  considering  it  of  importance  to  have  it  determined  whether  this 
form  of  crime  came  within  the  misdemeanor  of  obtaining  goods  by  false 
pretences,  or  whether  it  was  a  felony,  decided  to  state  this  case,  which 
I  respectfully  do,  for  the  consideration  of  the  Court  of  Criminal 
Appeal. 

The  question  for  the  opinion  of  the  court  is,  whether  I  was  right  in 
holding  and  directing  the  jury  that  the  prisoner  might  be  convicted  of 
larceny  by  trick. 

Keith  Frith,  on  behalf  of  the  prisoner.  There  was  no  larceny  or 
trick  here,  for  wherever  the  ownership  as  well  as  the  possession  of 
goods  is  parted  with,  there  can  be  no  larceny.  The  prisoner  should 
have  been  indicted  for  obtaining  the  coins  by  false  pretences.  Where 
it  has  been  held  that  there  has  been  larceny  by  a  trick,  such  as  the 
confidence  trick,  the  possession  and  not  the  ownership  has  been  parted 
with.  [Lord  Coleridge,  C.J.  —  In  Reg.  v.  Robson  (R.  &  R.  413) 
money  was  deposited  for  a  pretended  bet,  and  it  was  held  to  have 
been  a  case  of  larceny.]  That  was  because  there  the  money  was  only 
deposited,  and  though  the  possession  was  parted  with  the  ownership 
of  the  money  did  not  pass.  In  Reg.  v.  Wilson  (8  C.  &  P.  Ill),  the 
ring-dropping  case,  it  was  held  to  be  a  case  of  false  pretences.  [The 
court  here  adjourned,  and  upon  re-assembling  on  the  17th  day  of  May, 
called  upon  the  counsel  for  the  prosecution  to  support  the  conviction.] 

3ray  nth.  Slade  Butler  for  the  prosecution.  The  question  here 
is,  whether  or  not  this  particular  trick  comes  within  the  definition  of 
larceny.  It  is  said  that  it  does  not,  because  the  prosecutor  intended 
to  part  with  the  ownership  of  the  coins.  But  the  intention  in  the  mind 
of  the  prosecutor  cannot  alter  the  nature  of  the  crime.  The  question  is 
really  what  was  the  intention  of  the  prisoner  when  lie  took  the  coins  \ 
and  there  can  be  no  doubt  but  that  he  intended  to  obtain  them  wrong- 
fully. The  point  is  concluded  by  the  case  of  Reg.  v.  Middleton  (28  L.  T. 
Rep.  N.  S.  777  ;  12  Cox  C.  C.  417  ;  L.  Rep.  2  C.  C.  R.  38  ;  42  L.  J.  73, 


684  EEGINA   V.   SOLOMONS.  [CHAP.  VIII, 

M.  C).  There  must  be  a  geuuine  contract  in  order  to  pass  the  prop- 
erty, and  here  there  was  never  any  contract.  The  prosecutor  here 
never  intended  to  contract  for  what  he  obtained.  He  also  cited  Reg.  v, 
Buckmaster  (57  L.  T.  Rep.  N.  S.  720  ;  IG  Cox  C.  C.  339.;  20  Q.  B. 
Div.  182;  57  L.  J.  25,  M.  C). 

LoKD  Coleridge,  C.J.  This  case  is  really  upon  consideration  too 
clear  for  me  to  entertain  any  doubt  about  it.  Of  course  one  hesitates 
to  let  off  a  man  if  he  is  guilty  of  a  gross  fraud,  and  it  is  matter  for 
regret  to  have  to  let  off  a  man  who  is  reallj-  guilty  of  something.  But  as 
long  as  we  have  to  administer  the  law  we  must  do  so  according  to  the 
law  as  it  is.  We  are  not  here  to  make  the  law,  and  by  the  law  of 
England,  though  it  is  enacted  b}'  24  &  25  Vict.  c.  96,  s.  88,  that  a  man 
indicted  for  false  pretences  shall  not  be  acquitted  if  it  be  proved  that 
he  obtained  the  property  with  stealing  which  he  is  charged  in  any  such 
manner  as  to  amount  in  law  to  larcen}',  unfortunately  the  statute  stops 
there,  and  does  not  go  on  to  sa}'  that  if  upon  an  indictment  for  larcenj- 
the  offence  committed  is  shown  to  be  that  of  false  pretences,  the  prisoner 
toa}'  be  found  guilt}-  of  the  latter  offence.  The  statute  not  having  said 
it,  and  the  one  offence  being  a  misdemeanor  while  the  other  is  a  felon}', 
you  cannot  according  to  the  ordinar\'  principles  of  the  common  law 
convict  for  the  misdemeanor  where  the  prisoner  is  indicted  for  the 
felony.  Now  the  law  is  plain  that,  where  the  propert}*  in  an  article  is 
intended  to  be  parted  with,  the  offence  cannot  be  that  of  larceny.  Here 
it  is  quite  clear  that  the  prosecutor  did  intend  to  part  with  the  property 
in  the  piece  of  coin,  and  the  case  is  not  like  any  of  those  cases  in  which 
the  prosecutor  clearly  never  intended  to  part  with  the  propert}'  in  the 
article  alleged  to  have  been  stolen-  Whether  or  not  the  prosecutor 
here  intended  to  part  with  the  property-  in  the  coin  does  not  signify  if 
what  he  did  was  in  effect  to  part  with  it  for  something  which  he  did 
not  get.  I  have  alreadv  said  that  j'ou  cannot  convict  of  false  pretences 
upon  an  indictment  for  larcen}',  and  as  the  offence  here  was,  if  an}^- 
thing,  that  of  false  pretences,  and  the  indictment  was  for  larceny,  it 
follows  that  this  man  must  get  off  upon  this  indictment.  I  am  there- 
foi'e  of  opinion  that  this  conviction  must  be  quashed. 

Hawkins,  J.  I  cannot  myself  imagine  a  clearer  illustration  of  the 
difference  between  the  offence  of  false  pretences  and  that  of  larcenj' 
than  is  afforded  by  this  case.  It  is  perfectly  clear  that  the  prosecutor 
intended  to  part  with  the  property  in  the  coins,  and  that  being  so,  the 
case  is  clearl}-  not  that  of  larcenj'.  The  conviction  must  therefore  be 
quashed. 

Mathew,  J.  This  is  a  case  of  false  pretences,  if  anything,  and  not 
of  larceny ;  and  I  am  of  opinion  therefore  that  the  conviction  must  be 
quashed. 

Day,  J.     I  entirely  concur  with  mj^  Lord. 

Grantham,  J.     I  am  of  the  same  opinion. 

Conviction  quashed.^ 

1  Ace.  Reg.  V  Williams,  7  Cox  C.  C.  355 ;  Reg.  v  McKale,  11  Cox  C.  C.  32;  Reg.  v. 
Twist,  12  Cox  C.  C.  509 ;  Reg.  v.  Hollis,  15  Cox  C.  C.  32.  — Ed. 


SECT,  v.]  REGINA  V.    RUSSETT.  685 


REGINA  V.   RUSSETT. 
Crown  Case  Reserved.     1892. 

[Reported  [1892]  2  Q.  B.  312] 

Case  stated  by  the  Deputy-cbairmau  of  the  Gloucestershire  Quarter 
Sessions  :  — 

The  prisoner  was  tried  and  convicted  ui)on  an  indictment,  charging 
him  with  having  feloniously  stolen  on  March  20,  1892,  the  sum  of  £8 
in  money  of  the  moueys  of  James  Brotherton.  It  appeared  from  the 
facts  proved  in  evidence  that  on  the  day  in  question  the  prosecutor 
attended  Winchcomb  fair,  where  he  met  the  prisoner,  who  offered  to 
sell  him  a  horse  for  £24  ;  he  subsequently  agreed  to  purchase  the 
horse  for  £23,  £8  of  which  was  to  be  paid  down,  and  the  remaining 
£ir>  was  to  be  handed  over  to  the  prisoner  either  as  soon  as  the  pros- 
ecutor was  able  to  obtain  the  loan  of  it  from  some  friend  in  the  fair 
(which  he  expected  to  be  able  to  do)  or  at  the  prosecutor's  house  at 
Little  Hampton,  where  the  prisoner  was  told  to  take  the  horse  if  the 
balance  of  £15  could  not  be  obtained  in  the  fair.  The  prosecutor,  his 
son,  tlie  prisoner,  and  one  or  two  of  his  companions,  then  went  into  a 
public  house  where  an  agreement  in  the  following  words  was  written 
out  by  one  of  the  prisoner's  companions,  and  signed  by  prisoner  and 
prosecutor:  "  26th  March,  G.  Russett  sell  to  Mr.  James  and  Brother 
[«(V]  brown  horse  for  the  sum  of  £23  Os.  Od.  Mr.  James  and  Brother 
pay  the  sum  of  £8,  leaving  balance  due  £15  Os.  Od.  to  be  paid  on 
delivery."  The  signatures  were  written  over  an  ordinary  penny  stamp. 
The  prosecutor  thereupon  paid  the  prisoner  £8.  The  prosecutor  said 
in  the  course  of  his  evidence  :  "  I  never  expected  to  see  the  £8  back, 
but  to  have  the  horse."  The  prisoner  never  gave  the  prosecutor  an 
opportunity  of  attempting  to  borrow  the  £15,  nor  did  he  ever  take  or 
send  the  horse  to  the  prosecutor's  house  ;  but  he  caused  it  to  be 
removed  from  the  fair  under  circumstances  from  which  the  jury  in- 
ferred that  he  had  never  intended  to  deliver  it. 

It  was  objected  on  behalf  of  the  prisoner  that  there  was  no  evidence 
to  go  to  the  jury,  on  the  ground  that  the  prosecutor  parted  absolutely 
with  the  £8,  not  only  with  the  possession  but  with  the  property  in  it ; 
and,  consequently,  that  the  taking  by  the  prisoner  was  not  larceny, 
but  obtaining  money  by  false  pretences,  if  it  was  a  crime  at  all ;  the 
objection  was  overruled.  In  summing  up,  the  Deputy-chairman  directed 
the  jury  that  if  they  were  satisfied  from  the  facts  that  tlie  prisoner 
had  never  intended  to  deliver  the  horse,  but  had  gone  through  the 
form  of  a  bargain  as  a  device  by  which  to  obtain  the  prosecutor's 
money,  and  that  the  prosecutor  never  would  have  parted  with  his  £8 
had  he  known  what  was  in  the  prisoner's  mind,  they  should  find  the 
prisoner  guilty  of  larceny. 


686  REGINA   V.    RUSSETT.  [CHAP.  VIII. 

The  question  for  the  court  was  whether  the  Deputy-chairman  was 
right  in  leaving  the  case  to  tlie  jury. 

Gwynne  James,  for  the  prisoner.  The  conviction  was  wrong.  The 
only  offence  disclosed  was  that  of  obtaining  money  by  false  pretences. 
There  was  no  evidence  to  go  to  the  jury  upon  a  charge  of  larceny. 
The  property  in  the  money  passed  to  the  prisoner  at  the  time  when  it 
was  handed  to  him  by  the  prosecutor,  who  admittedly  never  expected  to 
see  it  again  ;  the  receipt  given  for  the  money  is  strong  evidence  of  the 
change  of  property.  The  case  is  distinguisliable  from  Reg.  v.  Buck- 
master,  20  Q.  B.  D.  182  ;  for  in  that  case  the  question  was  whether 
the  prosecutor  expected  to  have  his  money  back.  There  is  in  the 
present  case  a  breach  of  contract,  for  which  the  prosecutor  has  a  civil 
remedy,  and  it  is  immaterial  that  the  prisoner  in  making  tlie  contract 
had  a  fraudulent  intent.  Rex  v.  Harvey,  1  Leach,  467.  For  the  fact 
that  the  contract  was  induced  by  fraud  did  not  render  the  contract 
void,  or  prevent  the  property  from  passing.  Clough  v.  Loudon  and 
North  Western  Ry.  Co.,  Law  Rep.  7  Ex.  at  p.  34.  The  principle  of 
law  is  stated  in  Roscoe's  Criminal  Evidence,  11  th  ed.  at  p.  620,  where  it 
is  said  :  "  The  doctrine  is  clearly  established  that,  if  the  owner  intends 
to  part  with  the  property  in  the  goods,  and  in  pursuance  of  such  inten- 
tion delivers  the  goods  to  the  prisoner,  who  takes  them  away,  and  the 
property  becomes  his,  this  is  not  larceny,  even  though  the  prisoner  has 
from  the  first  a  fraudulent  intention." 

Stroud,  for  the  prosecution,  was  not  called  upon. 

Lord  Coleridge,  C.  J.  I  am  of  opinion  that  this  conviction  must 
be  supported.  The  principle  which  underlies  the  distinction  between 
larceny  and  false  pretences  has  been  laid  down  over  and  over  again, 
and  it  is  useless  for  us  to  cite  cases  where  the  facts  are  not  precisely 
similar  when  the  principle  is  always  the  same.  When  the  question  is 
approached  it  will  be  found  that  all  the  cases,  with  the  possible  excep- 
tion of  Rex  V.  Harvey,  1  Leach,  467,  as  to  which  there  may  be  some 
slight  doubt,  are  not  only  consistent  with,  but  are  illustrations  of,  tlie 
principle,  which  is  shortly  this :  if  the  possession  of  the  money  or 
goods  said  to  have  been  stolen  has  been  parted  with,  but  the  owner  did 
not  intend  to  part  with  the  property  in  them,  so  that  part  of  the  trans- 
action is  incomplete,  and  tlie  parting  with  the  possession  lias  been 
obtained  by  fraud  —  that  is  larceny.  This  seems  to  me  not  only  good 
law,  but  good  sense,  and  this  principle  underlies  all  the  cases.  If, 
however,  authority  be  wanted,  it  is  to  be  found  in  two  cases  which  we 
could  not  overrule  without  the  very  strongest  reason  for  so  doing :  the 
first  is  Reg  v.  McKale,  Law  Rep.  1  C.  C.  125,  where  Kelly,  L.C.B., 
said,  "  The  distinction  between  fraud  and  larceny  is  well  established. 
In  order  to  reduce  the  taking  under  such  circumstances  as  in  the 
present  case  from  larceny  to  fraud,  the  transaction  must  be  complete. 
If  the  transaction  is  not  complete,  if  the  owner  has  not  parted  with 
the  property  in  the  thing,  and  the  accused  has  taken  it  witli  a  fraudu- 
lent intent,  that  amounts  to  larceny."     The  distinction,  in  which  I 


SECT,  V.J  REGINA  V.    KUSSETT.  687 

entirely  concur,  is  there  expressed  in  felicitous  language  by  a  very 
high  authority.  The  other  case  is  that  of  Reg.  v.  Buckraaster,  20 
Q.  B.  D.  182,  which  seeins  to  me  directly  in  point;  that  decision  was 
grounded  on  Rex  v.  Oliver,  2  Russell  on  Crimes,  170,  and  Rex  o. 
Robson,  Russ.  &  Ry.  413,  where  the  same  principle  w^is  applied,  and 
the  same  conclusion  ai'rived  at. 

Pollock,  B  I  agree  in  the  conclusion  at  which  the  court  has 
arrived,  and  would  add  nothing  to  the  judgment  of  my  Lord  but  that  I 
wish  it  to  be  understood  that  this  case  is  decided  on  a  ground  which 
does  not  interfere  with  the  rule  of  law  which  has  been  so  long 
acted  on  :  that  where  the  prosecutor  has  intentionally  parted  with  the 
property  in  his  money  or  goods  as  well  as  with  their  possession  there 
can  be  no  larceny.  My  mind  has  therefore  been  directed  to  the  facts 
of  the  case,  in  order  to  see  whether  the  prosecutor  parted  with  liis 
money  in  the  sense  that  he  intended  to  part  with  the  property  in  it. 
In  my  opinion,  he  certainly  did  not.  This  was  not  a  case  of  a  payment 
made  on  an  honest  contract  for  the  sale  of  goods,  whi^h  eventually 
may,  from  some  cause,  not  be  delivered,  or  a  contract  for  sale  of  a 
chattel  such  as  in  Rex  v.  Harvey,  I  Leach,  467  ;  from  the  first  the 
prisoner  had  the  studied  intention  of  defrauding  the  prosecutor ; 
he  put  forward  the  horse  and  the  contract,  and  the  prosecutor,  believ- 
ing in  his  bona  fides,  paid  him  £8,  intending  to  complete  the  purchase 
and  settle  np  that  night.  The  prisoner  never  intended  to  part  with  the 
horse,  and  there  was  no  contract  between  the  parties.  The  money 
paid  by  the  prosecutor  was  no  more  than  a  payment  on  account. 

Hawkins,  J.  I  am  entirely  of  the  same  opinion.  In  my  judgment 
the  money  was  merely  handed  to  the  prisoner  by  way  of  deposit,  to 
remain  in  his  hands  until  completion  of  the  transaction  by  delivery 
of  the  horse.  He  never  intended,  or  could  have  intended,  that  the 
prisoner  should  take  the  money  and  hold  it,  whether  he  delivered  the 
horse  or  not.  The  idea  is  absurd;  his  intention  was  that  it  should  be 
held  temporarily  by  the  prisoner  until  the  contract  was  completed, 
while  the  prisoner  knew  well  that  the  contract  never  would  be  com- 
pleted, by  delivery  ;  the  latter  therefore  intended  to  keep  and  steal  the 
money.  Altogether,  apart  from  the  cases  and  from  the  principle  which 
has  been  so  frequently  enunciated,  I  should  not  have  a  shadow  of 
doubt  that  the  conviction  was  right. 

A.  L.  Smith,  J.  The  question  is  whether  the  prisoner  has  been 
guilty  of  the  offence  of  larceny  by  a  trick  or  that  of  obtaining  money 
by  false  pretences  ;  it  has  been  contended  on  his  behalf  that  he  could 
only  have  been  convicted  on  an  indictment  charging  the  latter  offence  ; 
but  I  cannot  agree  with  that  contention.  The  difference  between  the 
two  off'ences  is  this  :  if  possession  only  of  money  or  goods  is  given, 
and  the  property  is  not  intended  to  pass,  that  may  be  larceny  by  a 
trick ;  the  reason  being  that  there  is  a  taking  of  the  chattel  by  the 
thief  against  the  will  of  the  owner ;  but  if  possession  is  given  and  it 
is  intended  by  the  owner  that  the  property  shall  also  pass,  that  is  not 


688  EEX   V.   TIDESWELL.  [CHAP.  VIII. 

larceny  by  a  trick,  but  may  be  false  pretences,  because  in  that  case 
there  is  no  taking,  but  a  handing  over  of  the  chattel  by  the  owner. 
This  case,  therefore,  comes  to  be  one  of  fact,  and  we  have  to  see 
whether  there  is  evidence  that,  at  the  time  the  £8  was  handed  over, 
the  prosecutor  intended  to  pass  to  the  prisoner  the  property  in  that 
Slim,  as  well  as  to  give  possession.  I  need  only  refer  to  the  contract, 
which  provides  for  payment  of  the  balance  on  delivery  of  the  horse,  to 
shew  how  impossible  it  is  to  read  into  it  an  agreement  to  pay  the  £8 
to  the  prisoner  whether  he  gave  delivery  of  the  horse  or  not ;  it  was 
clearly  only  a  deposit  by  way  of  part  payment  of  the  price  of  the 
horse,  and  there  was  ample  evidence  that  the  prosecutor  never  intended 
to  part  with  the  property  in  the  money  when  he  gave  it  into  the 
prisoner's  possession. 

Wills,  J.  I  am  of  the  same  opinion.  As  far  as  the  prisoner  is 
concerned,  it  is  out  of  the  question  that  he  intended  to  enter  into  a 
binding  contract ;  the  transaction  was  a  mere  sham  on  his  part.  The 
case  is  not  one  to  which  the  doctrine  of  false  pretences  will  apply,  and 
I  agree  with  the  other  members  of  the  court  that  the  conviction  must 
be  affirmed.  Conviction  affirmed} 


REX  V.  TIDESWELL. 

Court  for  Crown  Cases  Reserved.     1905. 

[Reported  1 905,  2  K.  B.  273.] 

Case  stated  by  the  chairman  of  the  Staffordshire  Quarter  Sessions 
for  the  consideration  of  the  Court  for  Crown  Cases  Reserved. 

1.  The  prisoner  was  tried  on  an  indictment  charging  him  — 

(a)  With  feloniously  stealing  1  ton  10  cwt.  of  casters'  ashes  on  Jan- 
uary 28,  1904,  the  property-  of  Allen  Everitt  &  Sons,  Limited. 

{b)  With  receiving  the  said  goods  on  the  date  aforesaid  well  knowing 
them  to  have  been  stolen. 

(c)  With  feloniously  stealing  1  ton  6  cwt.  of  casters'  ashes  on  April 
21,  1904,  the  property  of  the  said  Allen  Everitt  &  Sons,  Limited. 

{d)  With  receiving  the  last-mentioned  goods  on  the  said  date  well 
knowing  them  to  have  been  stolen. 

2.  It  was  proved  that  the  prisoner  had  been  a  customer  of  Allen 
Everitt  &  Sons,  Limited,  for  a  number  of  years,  purchasing  waste  and 
residual  metal  products  from  them.  A  man  named  Ephraim  Kaye  was 
employed  by  Allen  Everitt  &  Sons,  Limited,  as  general  metal  weigher, 
and  it  was  his  dut}'  to  weigh  out  waste  and  residuals,  and  to  enter  in  a 
book,  called  the  residual  metal  book,  a  record  of  such  weights  for  the 
purpose  of  enabling  the  customers  to  be  charged  in  the  books  of  the 
company  with  the  proper  weights.  It  was  also  the  duty  of  Ephraim 
Kaye  to  keep  another  book,  called  the  receipt  book,  in  which  he  took 

1  Ace.  People  v.  Rae,  66  Cal.  423.     See  People  v.  Raschke,  73  Cal.  378.  —  Ed. 


SECT,  v.]  EEX    V.   TIDESWRLL.  689 

from  the  customers  signed  receipts  for  the  weights  of  waste  and  resid- 
uals taken  by  them. 

3.  On  January  23,  1904,  Ephraim  Kaye  weighed  and  delivered  into 
trucks  of  the  railway  company  a  quantity  of  casters'  ashes,  a  residual 
metal  product,  tlie  property  of  Allen  P>eritt  &  Sons,  Limited,  weighing 
in  fact  32  tons  13  cwt.  P^phraim  Kaye  made  out  a  receipt  for  these 
casters'  ashes  by  the  prisoner  in  his  receipt-book,  describing  them  as 
weighing  31  tons  3  cwt.  only,  and  this  receipt  was,  on  January  23, 
signed  by  the  prisoner,  who  was  charged  with  that  amount  only  in  the 
books  of  the  company.  On  January  20  and  23  the  prisoner  made  out 
two  consignment  notes  to  the  railway-  company  in  his  own  handwriting 
for  19  tons  9  cwt.  and  13  tons  4  cwt.  respectively  of  casters'  ashes» 
amounting  together  to  32  tons  13  cwt. 

4.  On  April  21,  1904,  Ephraim  Kaye  weighed  and  delivered  into 
two  trucks  of  the  railway  company  a  quantity  of  casters'  ashes,  the 
property  of  Allen  Everitt  &  Sons,  Limited,  weighing  in  fact  12  tons  16 
cwt.  2  qrs.  The  prisoner  on  April  20  signed  a  receipt  made  out  by 
Ephraim  Kaye  in  his  receipt-book  for  11  tons  10  cwt.  2  qrs.  only,  and 
was  charged  witli  that  weight  in  the  books  of  the  company.  The  pris- 
oner on  April  21  made  out  a  consignment  note  to  the  railway  company 
in  his  own  handwriting  for  12  tons  16  cwt.  2  qrs.  of  casters'  ashes. 

5.  Ephraim  Kaye,  who,  on  being  charged  with  the  aforementioned 
felonies  Iiefore  magistrates  at  petty  sessions,  pleaded  guilty,  and  was 
sentenced  to  three  months'  imprisonment,  was  called  on  behalf  of  the 
prosecution,  and  stated  that  he  entered  the  lesser  weights  in  the  resid- 
ual metal  book  and  receipt-book  intentionally-,  and  that  he  kept  a  pri- 
vate book,  to  which  he  referred  at  the  trial,  in  which  he  entered  all  the 
correct  weights  of  goods  weighed  out  to  the  prisoner,  who  obtained 
these  correct  weights  from  him,  or  through  being  present  at  the  time 
they  were  entered.  He  said  that  he  had  no  previous  arrangement  or 
understanding  with  the  prisoner  that  he  was  to  be  charged  for  less 
casters'  ashes  than  were  to  be  sent,  and  that  he  could  not  say  that  he 
liad  ever  told  the  prisoner  that  he  was  being  charged  for  less  than  the 
actual  weights  on  any  occasion,  and  that  there  was  no  understanding  as 
to  any  particular  deduction  from  weiglils,  though  (he  added)  deductions 
were  as  a  matter  of  fact  made  ;  but  the  prisoner  had  given  him  suras 
of  money  from  time  to  time  as  a  reward  for  these  s.ervices  generally, 
though  not  as  a  payment  in  respect  of  any  particular  transaction.  All 
the  casters'  ashes  that  were  put  into  tlie  railway  company's  trucks  were 
loaded  in  the  ordinary  course  of  business  between  Allen  Everitt  &  Sons, 
Limited,  and  the  prisoner. 

6.  On  this  evidence  it  was  objected  by  counsel  for  the  prisoner  that 
the  indictment  was  not  supported  by  the  evidence,  on  the  ground  that 
there  was  no  proof  of  the  larceny  or  receiving  by  the  prisoner  of  any 
specific  goods. 

7.  I  overruled  the  objection,  but  consented  to  reserve  the  point  for 
the  consideration  of  the  Con  it  for  Grown  Cases  Reserved.     I  told  the 


C90  REX   V.    TIDESWELL.  [CHAP.  VIII. 

jury  that  if  they  believed  the  evidence  for  the  prosecution,  their  duty 
was  to  find  the  prisoner  guilty.     The  jury  found  the  prisoner  guilty. 

March  18.  Vachell,  for  the  prisoner.  The  ashes  put  into  the  trucks 
were  never  divided,  so  that  it  was  impossible  to  say  which  particular 
tons  or  hundredweight  were  stolen.  "  In  larceny  some  particular  arti- 
cle must  be  proved  to  have  been  stolen  ;  "  per  Alderson,  B.,  Reg.  v. 
Lloyd  Jones  (1838),  8  C.  &  P.  288.  Secondly,  the  evidence  shews  that 
the  property  in  the  whole  of  the  ashes  weighed  out  by  Kaye  passed  from 
the  prosecutors.     Sale  of  Goods  Act,  1893,  §  18,  rule  3. 

R.  W.  Coventry,  for  the  prosecution.  It  is  enough  to  specify  the 
amount  stolen,  although  it  forms  part  of  a  larger  bulk.  Kaye  had  no 
authority  from  the  prosecutors  to  transfer  the  property  in  any  portion 
of  the  ashes  except  to  the  extent  of  the  entry  made  by  him  in  the  resid- 
ual metal  book.  And  the  prisoner,  knowing  that  he  liad  no  such 
authority,  got  no  property  in  the  excess.  Reg.  v.  Hornby  (1844), 
I  C.  &  K.  305. 

The  Court  ordered  the  case  to  be  remitted  to  the  quarter  sessions 
with  directions  that  the  following  questions  should  be  answered  :  — 

(o)  Was  there  any  previous  or  contemporary  contract  between  the 
prisoner  and  Allen  Everitt  &  Sons,  Limited,  or  any  authorized  agent 
or  servant  of  Allen  Everitt  &  Sons,  Limited,  other  than  Kaye,  either 
for  the  sale  of  these  ashes  or  the  sale  of  any  quantities  of  ashes?  If  so, 
the  particulars  of  the  terms  of  the  contract  should  be  set  out. 

{b)  Was  there  any  contract  between  the  prisoner  and  Kaye  for  the 
sale  of  the  ashes  on  either  of  the  dates  laid  in  the  indictment?  If  so, 
the  particulars  of  the  contract  should  be  set  out. 

In  accordance  with  that  order  the  chairman  stated  as  follows  :  — 

The  evidence  at  the  trial  did  not  disclose  any  such  contract  as  re- 
ferred to  in  paragraph  (a)  or  in  paragraph  {b).  The  managing  director 
of  the  prosecutors  stated  in  evidence  that  the  prisoner  was  a  customer 
as  buyer  of  residuals,  and  that  he  had  sold  as  much  as  3000/.  in  value 
to  the  prisoner,  and  that  he  had  known  the  prisoner  fifteen  years  in 
the  way  of  business.  The  practice  appears  to  have  been  that  when 
Allen  Everitt  &  Sons,  Limited,  had  an  accumulation  of  waste  residuals 
or  ashes  they  sent  for  the  prisoner,  who  saw  the  managing  director  and 
arrano-ed  verbally  with  him  to  buy  so  much  as  he  should  require  of  the 
bulk  at  so  much  per  ton.  No  specific  quantities  would  be  mentioned, 
the  understanding  being  that  the  quantities  purchased  should  be  de- 
fined by  the  weighing.  The  ashes,  the  subject  of  the  indictment,  formed 
part  of  one  of  these  accumulations. 

May  20.     R.  W.  Coventry^  for  the  prosecution. 

Vachell,  for  the  prisoner.  The  property  in  the  whole  of  the  truck- 
loads  passed  to  the  prisoner  as  soon  as  they  were  separated  from  the 
bulk  and  weighed  and  put  into  the  trucks  for  the  prisoner.  For  noth- 
ing else  remained  to  be  done  to  pass  the  property.  Whatever  fraud 
was  afterwards  perpetrated  could  not  alter  the  fact.  The  prosecutors 
intended  the  whole  of  the  goods  to  go  to  the  prisoner,  for,  by  the  terms 


SECT,  v.]  REX    V.   TIDESWELL.  691 

of  the  arrangement,  he  was  to  take  as  much  as  he  pleased.  What  the 
prosecutors  were  deprived  of  was  not  a  certain  quantit}-  of  goods,  but 
a  part  of  the  price. 

Lord  Alverstone,  C.  J.  Upon  the  point  reserved  for  our  consid- 
eration upon  the  case  as  originally  stated,  namely,  whether  the  indict- 
ment for  larceny  could  be  supported  in  the  absence  of  proof  of  larceny 
of  any  specific  portion  of  the  goods,  I  entertained  no  doubt  whatever. 
But  in  the  course  of  the  argument  a  question  was  raised  as  to  whether 
the  property  in  the  goods  had  not  already  passed  to  the  prisoner  at  the 
time  of  the  fraudulent  entry  in  the  weight-book,  and  whether  conse- 
quentl}',  whatever  other  criminal  offence  he  might  have  committed,  he 
could  be  properly  cliarged  with  larceny  ;  and  as  we  thought  the  case 
did  not  sufficiently  state  the  facts  with  respect  to  that  matter,  we  sent 
it  back  to  be  restated.  The  question  whether  the  prisoner's  offence 
amounts  to  larceny  must  depend  upon  the  circumstances  under  which 
he  received  the  goods.  Suppose  the  owner  of  a  flock  of  sheep  were  to 
offer  to  sell,  and  a  purchaser  agreed  to  buy,  the  whole  flock  at  so 
much  a  head,  the  owner  leaving  it  to  liis  bailiff  to  count  the  sheep  and 
ascertain  the  exact  number  of  the  flock,  and  subsequently  the  purchaser 
were  to  fraudulently  arrange  with  the  bailiff  that  whereas  there  were  in 
fact  thirty  sheep  they  should  be  counted  as  twenty-five,  and  the  pur- 
chaser should  be  charged  with  twenty-five  only,  there  would  be  no 
larceny,  because  the  property  would  have  passed  to  the  purchaser 
before  the  fraudulent  agreement  was  entered  into.  On  the  other  hand, 
if  the  owner  were  to  leave  it  to  his  bailiff  to  arrange  the  sale,  author- 
izing him  to  sell  as  many  sheep  out  of  the  flock  as  the  purchaser  should 
be  willing  to  buy,  then  if  the  contract  of  sale  arranged  between  the 
bailiff  and  the  purchaser  was  expressed  to  be  for  twenty-five  sheep, 
and  the  whole  thirty  were  fraudulently  delivered  to  the  purchaser,  the 
obtaining  possession  of  the  five  sheep  as  to  which  there  was  no  contract 
of  sale  would  amount  to  larceny.  In  the  present  case,  as  restated,  it 
appears  that  there  was  no  contract  with  the  managing  director  that  the 
prisoner  should  buy  the  whole  of  the  ashes  in  the  trucks,  but  only  such 
a  quantity  as  should  be  defined  by  the  weighing ;  in  other  words,  there 
was  no  contract  of  purchase  except  that  made  with  Kaye.  That  being 
so,  the  case  is  governed  by  the  principle  of  Reg.  v.  Hornby,  1  C.  &  K. 
305,  where  the  prisoner  received  goods  from  the  servant  of  the  owner 
under  color  of  a  pretended  sale,  and  it  was  held  that  the  fact  of  his 
having  received  the  goods  with  the  knowledge  that  the  servant  had  no 
authority  to  sell,  and  was  in  fact  defrauding  his  master,  was  sufficient 
to  support  an  indictment  for  larceny.  I  am  of  opinion  that  the  convic- 
tion in  this  case  must  be  upheld. 

Lawrance,  J.     I  am  of  the  same  opinion. 


692  KEX    V.    TIDESWELL.     '  [CHAP.  VIII. 

Kennedy,  J.  I  agree  in  the  statement  of  the  law  by  my  Lord,  and 
I  also  think  that  upon  the  case  as  originally  stated  it  was  not  clear 
that  the  facts  shewed  the  prisoner  to  have  been  guilty  of  larceny  within 
that  statement.  It  was  contended  that  what  took  place  was  an  ar- 
rangement whereby  the  property  passed  to  the  prisoner.  If  there  had 
been  a  completed  contract  with  the  managing  director,  or  some  other 
official  of  the  company  covering  all  the  goods  in  the  trucks,  then  no 
doubt  the  property  would  have  passed,  and  n.o  subsequent  fraud  would 
make  the  receipt  of  the  goods  larceny.  The  offence  in  such  a  case 
would  be  onl}-  a  conspiracj'  to  defraud  the  sellers  of  part  of  the  price. 
But  here,  on  the  facts  as  now  stated,  there  was  no  intention  by  the 
prosecutors  to  pass  the  property  except  in  such  goods  as  should  bi' 
ascertained  by  the  weighing, — that  is  to  saj-,  in  the  smaller  quantity. 
Conseqently  there  was  a  larceny  of  the  balance. 

Chaxnell,  J.  I  agree.  It  appears  to  me  that  the  question  whether 
the  prisoner  could  properly  be  convicted  of  larceny  depends  upon 
whether  there  was  a  contract  between  Allen  Everitt  &  Sons,  Limited, 
and  the  prisoner  for  the  sale  of  the  casters'  ashes  other  than  a  contract 
made  tlirougli  the  agenc}-  of  tlie  fraudulent  man  Kaye.  To  take  the 
illustration  given  during  tlie  argument  of  the  sale  of  sheep.  If  a  farmer 
sells  all  the  sheep  in  a  field  to  a  purchaser  at  so  much  per  head,  but  not 
knowing  for  certain  how  many  sheep  there  are,  sends  his  servant  with 
the  purchaser  to  count  them,  and  the  servant  and  the  purchaser  fraud- 
ulently agree  to  say  that  there  were  onl}'  nineteen  sheep  when  there 
really  were  twenty,  there  is  no  larceny  because  all  the  sheep  have  been 
sold  by  their  owner  to  the  purchaser,  but  the  purchaser  and  the  servant 
have  conspired  to  defraud  the  owner  of  the  price  of  one  sheep.  If, 
however,  a  farm  bailiff,  having  authority  to  sell  his  master's  sheep  in 
the  ordinary  wa}',  says  to  a  purchaser,  "  There  are  twenty  sheep  in  the 
field  belonging  to  my  master,  but  he  does  not  know  how  many  there 
are  ;  you  can  take  them  all.  I  will  tell  my  master  you  had  nineteen 
only,  and  you  can  pay  him  for  nineteen  and  give  me  a  present  for 
myself,"  there  is  clearly  a  larceny  of  one  sheep,  and  that  whether  the 
bailiff  professes  to  sell  the  twenty  sheep,  or  whether  he  professes  to  sell 
nineteen  only,  for  the  fraud  of  the  servant  is  known  to  the  purchaser, 
and  no  property  passes  in  the  twentieth  sheep  bj*  the  act  so  known  to 
be  fraudulent,  even  if  the  bailiff  professes  to  part  with  the  property  in 
it.  Reg.  V.  Hornb}',  1  C.  &  K.  305,  is  a  distinct  authority  for  this.  It 
is  a  decision  of  Coltman,  J.,  alone,  but  it  appears  to  be  good  law.  Reg. 
V.  Middleton  (1873),  L.  R.  2  C.  C.  38,  also  supports  this  view,  and  so 
do  all  the  cases  as  to  what  is  usually  called  larceny  by  a  trick.  In  the 
case  supposed  it  would  be  impossible  to  say  which  of  the  twent}'  sheep 
was  the  one  which  had  been  stolen,  but  it  could  not  be  said  that  that 
would  prevent  a  conviction.     The  suggested  difficult}'  in  the  present 


SECT.  VI.]  REX     V.    WILKINSON.  693 

case  of  identifying  the  ton  and  a  half  of  casters'  ashes  which  was  stolen 
is,  in  my  opinion,  no  more  fatal  than  the  difficult}'  as  to  the  sheep 
would  be.  In  the  present  case  the  jur}-  must  be  taken  to  have  found 
that  the  prisoner  was  a  party  to  the  fraud,  and  though  he  may  not  have 
known  what  quantity  was  on  any  particular  occasion  to  be  given  to  him 
without  paying  for  it,  or  even  that  on  a  particular  parcel  being  handed 
to  him  some  part  would  be  so  given  to  him  (for  Kaye  doubtless  would 
onh^  commit  the  fraud  when  the  circumstances  presented  a  reasonable 
probability  of  its  being  done  without  detection),  yet  the  prisoner  must 
be  taken  to  have  known  before  the  transactions  the  subjects  of  this 
indictment  that  Kaye  would  probably  do  on  this  occasion  what  he  had 
clearly  done  on  others,  and  in  the  cases  when  he  did  so  there  would  be 
a  larcen}'  committed  by  both,  though  in  the  other  cases,  when  the  stuff 
was  correctly  weighed,  there  would  be  none.  On  these  points  I  find 
no  difficult}',  but  in  the  case  as  original)}'  stated  there  was  nothing  to 
shew  whether  the  whole  transaction  of  the  sale  of  the  casters'  ashes 
was  carried  through  by  Kaj'e,  or  whether  the  limited  company  by  any 
other  officer  or  agent  made  a  contract  for  the  sale. 

Phillimore,  J.     I  entirely  agree.  Conviction  affirmed. 


SECTION   VI. 

Animus  furandi. 

REX  V.   WILKINSON. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  §•  Rijan,  470.] 

The  prisoners  were  tried  before  Mr.  Justice  Park  (present  Lord 
Chief  Justice  Abbott)  at  the  Old  Bailey  Sessions,  October,  1821,  on 
an  indictment  for  stealing  six  thousand  six  hundred  and  ninety- six 
pounds'  weight  of  nux  vomica,  value  thirty  pounds,  the  property  of 
James  Marsh,  Henry  Coombe,  and  John  Young,  in  a  certain  boat 
belonging  to  them  in  the  port  of  London,  being  a  port  of  entry  and 
discharge. 

It  appeared  in  evidence  that  the  prosecutors  were  lightermen  and 
agents,  and  were  employed  by  a  Mr.  Cooper,  a  merchant,  who  delivered 
them  warrants  properly  filled  up  to  enable  them  to  pass  the  nux 
vomica  through  the  custom  house  for  exportation  to  Amsterdam. 
The  quantity  was  thirty  bales  of  nux  vomica,  consisting  of  seven 
hundred  and  fifty  bags. 

For  exportation  this  commodity  paid  no  duty  ;  but  for  home  con- 
Bumption  there  was  a  duty  of  two  shillings  and  sixpence  on  the  pound 


694  REX    V.   WILKINSON.  [CHAP.  VIII. 

weight,  though  the  article  itself  was  not  worth  above  one  penny  per 
pound. 

Messrs.  Marsh  &  Co.  entered  the  bales  for  a  vessel  about  to  sail  to 
Amsterdam,  called  the  ''York  Merchant,"  then  lying  in  the  London 
dock  ;  and  having  done  what  was  necessary  delivered  back  the  cocket 
bill  and  warrants  to  Cooper,  considering  him  as  the  owner,  and  Marsh 
&  Co.  gave  a  bond  to  Government  with  Cooper  under  a  penalty  to  export 
these  goods.  Marsh  &  Co.  were  to  be  paid  for  lighterage  and  for  their 
services. 

After  this  Marsh  &  Co.  employed  the  prisoner  Wilkinson  as  their 
servant,  who  was  a  lighterman  (and  who  had  originally  introduced 
Cooper  to  them  to  do  what  was  necessary  respecting  the  nux  vomica), 
to  convey  the  goods  from  Bon  Creek,  where  they  were,  to  the  "  York 
Merchant "  at  tlie  London  docks,  and  lent  their  boat  with  the  name 
"Marsh  &  Co."  upon  it  to  enable  him  so  to  do. 

The  prisoner  Wilkinson  accordingly  went  and  got  the  nux  vomica  by 
an  order  commanding  the  person  who  had  the  possession  of  it  to  de- 
liver it  to  Mr.  John  Cooper.     The  bales  were  marked  C.  4  to  33. 

When  Wilkinson  received  the  cargo,  instead  of  taking  it  to  the  "  York 
Merchant"  he,  one  William  Marsden,  and  the  other  prisonei',  Joseph 
Marsden,  took  the  boat  to  a  Mr.  Brown's,  a  wharfinger  at  Lea  Cut  in 
the  county  of  Middlesex,  and  there  unloaded  it  into  a  warehouse  which 
William  Marsden  had  hired  three  weeks  before,  and  which  they  had 
used  once  before.  The  two  prisoners  and  William  Marsden  were 
there  employed  a  long  time  in  unpacking  the  bales,  taking  out  the 
nux  vomica,  repacking  it  in  smaller  sacks,  and  sending  it  by  a  wagon 
to  London,  and  refilling  the  marked  bales  with  cinders  and  other 
rubbish  which  they  found  on  the  wharf. 

The  prisoner  Wilkinson  then  put  the  bales  of  cinders,  etc.,  on  board 
the  boat,  took  them  to  the  "York  Merchant,"  hailed  the  vessel,  and 
said  he  had  thirty  bales  of  nux  vomica,  which  were  put  on  board  and 
remained  so  for  two  or  three  days  when  the  searcher  of  the  customs 
discovered  the  fraud. 

Marsh  &  Co.  admitted  that  they  had  not  been  called  on  for  any  du- 
ties nor  sued  upon  the  bond,  though  the  bond  remained  uncancelled. 

The  defence  was,  and  which  Cooper  was  called  to  prove,  that  the 
goods  were  not  his  (Cooper's) ,  but  that  he  had  at  William  Marsden's 
desire  lent  his  name  to  pass  the  entry  ;  and  that  he  had  done  so,  but 
did  not  know  why  ;  that  he  did  not  know  it  was  a  smuggling  trans- 
action, or  that  the  object  was  to  cheat  Government  of  the  importation 
duties. 

If  these  were  to  be  considered  as  the  goods  of  Cooper  then  it  should 
seem  a  felony  was  committed  upon  them  by  Wilkinson  and  the  two 
Marsdens  by  taking  them  in  the  manner  described  out  of  the  hands  of 
Marsh  &  Co.  without  their  knowledge  or  consent,  who  as  lightermen 
or  carriers  had  a  special  property  in  them,  and  who  were  also  liable  to 
Government  to  see  the  due  exportation  of  them. 


SECT.  VI.]  KEGINA    V.   WEBSTER.  695 

Ev'en  if  they  were  the  goods  of  William  Marsden,  who  superintended 
the  shifting  of  them  from  the  bales  to  the  sacks,  the  question  for  the 
judges  to  consider  was  whether  this  can  be  doue  by  an  owner  against 
a  special  bailee  who  has  made  himself  responsible  that  a  given  thing 
shall  be  done  with  the  goods,  and  which  the  owner,  without  the  knowl- 
edge or  consent  of  such  bailee,  had  by  a  previous  act  entirely 
prevented. 

The  learned  judge  told  the  jury  that  he  would  reserve  this  point  for 
the  opinion  of  the  judges ;  but  desired  them  to  say  whether  they 
thought  the  general  property  in  the  goods  was  in  Cooper  or  William 
Marsden. 

The  jury  found  the  prisoners  guilty,  and  that  the  property  was  Wil- 
liam Marsden's. 

In  Michaelmas  Term,  1821,  eleven  of  the  judges  (Best,  J.,  being  ab- 
sent) met  and  considered  this  case.  Four  of  the  judges,  namely, 
Richardson,  J.,  Bukrough,  J.,  Wood,  B.,  Graham,  B.,  doubted 
whether  this  was  larceny  because  there  was  no  intent  to  cheat  Marsh 
&  Co.  or  to  charge  them,  but  the  intent  was  to  cheat  the  Crown. 
Seven  of  the  judges,  namely,  Garrow,  B.,  Holroyd,  J.,  Park,  J., 
Baylky,  J..  Richards,  C.  B.,  Dallas,  C.  J.,  Abbott,  L.  C.  J.,  held  it 
a  larceny  because  Marsh  &  Co.  had  a  right  to  the  possession  until  the 
goods  reached  the  ship  ;  they  had  also  an  interest  in  that  possession, 
"and  the  intent  to  deprive  them  of  their  possession  wrongfully  and 
against  their  will  was  a  felonious  intent  as  against  them,  because  it 
exposed  them  to  a  suit  upon  the  bond.  In  the  opinion  of  part  of  the 
seven  judges  this  would  have  been  larceny  although  there  had  been 
no  felonious  intent  against  Marsh  &  Co.,  but  only  an  intention  to 
defraud  the  Crown. ^ 


A 


REGINA   V.   WEBSTER.  ,,      , 

Crown  Case  Reserved.     1861. 

[Reported  9  Cox  C.  C.  13.] 

Case  reserved  for  the  opinion  of  this  court  by  the  Chairman  of  the 
West  Riding  Sessions,  held  at  Sheffield. 

William  Webster  was  indicted  at  the  West  Riding  of  Yorkshire 
Spring  intermediate  sessions,  held  at  Sheffield,  on  the  22d  May,  1861, 
for  stealing,  on  the  11th  of  May,  at  Ecclesfield,  three  sovereigns  and 
one  half-sovereign,  the  property  of  Samuel  Fox  and  others. 

It  was  proved  on  the  trial  that  James  Holt  was  in  possession  of  a 
shop,  where  goods  were  sold  for  the  benefit  of  a  society  called  the 
*'  Stockbridge  Band  of  Hope  Co-operative  Industrial  Society.** 

1   Vide  Fost.  124.  — Rep. 


696  EEGINA   V.    WEBSTER.  [CHAP,  VIII. 

Each  member  of  the  society  partook  of  the  profit,  and  was  subject 
to  the  loss  arising  from  the  shop.  Holt  (being  himself  a  member) 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  possession  in  the  course  of 
such  management.  The  prisoner,  also  a  member  of  the  society, 
assisted  in  the  shop  without  salary. 

On  the  occasion  of  the  alleged  larceny  Holt  had  marked  some  sover- 
eigns and  half-sovereigns,  and  placed  them  in  the  till.  The  prisoner 
was  suspected  of  taking  some  of  them,  and  when  charged  with  this  he 
admitted  that  he  had  talcen  the  coins  which  formed  the  subject  of 
this  charge,  and  produced  them  from  his  pocket. 

The  prosecution  failing  to  prove  that  this  was  a  friendly  society 
duly  enrolled,  elected  to  amend  the  indictment  by  substituting  the 
name  of  James  Holt  for  that  of  Samuel  Fox  and  others,  and  the  same 
was  amended  accordingly. 

The  counsel  for  the  prisoner  put  in  a  copy  of  the  rules  of  the 
society,  with  the  name  of  John  Tidd  Pratt  printed  at  the  end  thereof, 
and  proved  that  this  copy  had  been  examined  with  the  original  copy, 
signed  and  sealed  by  the  registrar  of  friendly  societies,  but  which  was 
not  produced.  He  also  put  in  a  conveyance  of  the  shop  and  premises 
to  Samuel  Fox  and  other  as  trustees. 

No  other  evidence  of  the  trusteeship  was  given. 

The  counsel  for  the  prosecution  objected  that  in  order  to  prove  the 
society  to  be  a  friendly  society  under  the  18  &  19  Vict.  c.  63,  it  was 
necessary  to  produce  the  original  copy  signed  by  the  registrar,  or  to 
account  for  its  absence  sufficiently  to  justify  the  admission  of  secondary 
evidence. 

I  overruled  this  objection,  and  admitted  this  evidence  as  proof  that 
the  society  was  duly  enrolled. 

It  was  contended  for  the  prisoner  that  Fox  and  others  were  the 
trustees  ;  that  this  was  a  friendly  society,  and  that  the  property  should 
be  laid  in  Fox  and  others,  and  not  in  Holt,  and  that  the  prisoner 
could  not  therefore  be  convicted  on  the  indictment  as  amended  ;  that 
as  to  any  special  property  Holt  might  have  in  the  money  taken,  he 
was  joint  owner  of  it  with  the  prisoner,  and  as  partner  with  him  was 
equally  in  possession  of  it,  and  could  not  therefore  be  convicted. 

The  court  overruled  these  last  mentioned  objections,  and  the 
prisoner  was  convicted  and  sentenced  to  be  imprisoned  in  the  house 
of  correction  at  Wakefield  for  nine  calendar  months,  subject  to  the 
opinion  of  the  Court  of  Criminal  Appeal  whether  under  the  circum- 
stances the  conviction  was  right. 

The  prisoner  was  admitted  to  bail  to  await  the  decision  of  the  Court 
of  Criminal  Appeal. 

A  copy  of  the  rules  of  the  society  accompanies  this  case,  and  is  to 
be  taken  as  incorporated  therewith. 

Wilson  Overend,  Chairman. 


SECT.  VI.]  KEGINA    V.    WEBSTER.  697 

T.  Camjjbell  Foster,  for  the  prisoner.  It  is  contended  that  the  in- 
dictment as  amended  was  not  proved,  and  that  the  property  ought  to 
have  been  laid  as  in  Fox  and  others,  the  trustees  of  the  friendly 
society.  The  prosecutor  having  failed  to  prove  that  the  property  was 
rightly  laid  in  Fox  and  others,  and  the  court  having  amended  the 
indictment  by  substituting  Holt's  name  instead  of  Fox  and  others,  the 
prisoner  produced  the  proper  evidence  to  show  that  Fox  and  others 
were  the  trustees  of  the  society,  and  then  objected  to  the  indictment  as 
amended,  on  the  ground  that  by  the  18  &  19  Vict.,  c.  63,  s.  18,  the 
property  of  the  friendly  society  was  vested  in  the  trustees.  Sect.  19 
empowers  the  trustees  to  bring  or  defend,  or  cause  to  be  brought  or 
defended  any  action,  suit  or  prosecution  in  any  court  of  law  or 
equity,  touching  or  concerning  the  property,  right  or  claim  to  property 
of  the  society,  "  and  such  trustees  shall  and  may,  in  all  cases  con- 
cerning the  real  or  personal  property  of  such  society,  sue  and  be 
sued,  plead  and  be  impleaded  in  their  proper  names  as  trustees  of 
such  society  without  other  description." 

Martin,  B.  What  evidence  was  there  to  show  that  Holt  was  not 
in  possession  of  these  sovereigns  as  of  his  own  lawful  property? 

WiGHTMAN,  J.  Again,  he  was  a  partner,  and  had  the  personal 
possession  of  these  moneys. 

T.  Campbell  Foster.  It  is  submitted  that  the  only  possession  Holt 
had  was  that  of  a  servant  to  the  friendly  society.  If  he  had  taken 
and  appropriated  any  of  the  moneys  received  by  him,  he  might  have 
been  indicted  for  embezzlement,  and  therefore  he  was  a  servant,  and 
his  possession  was  that  of  the  society  his  masters. 

WiGiiTMAN,  J.  He  was  not  a  servant ;  he  was  an  owner,  and  had 
the  sovereigns  in  his  personal  possession. 

Martin,  B.  He  had  the  sole  management  of  the  shop,  and  was 
answerable  for  the  safety  of  all  the  property  and  money  coming  to 
his  possession  in  the  course  of  such  management. 

T.  Camphell  Foster.  Then  the  prisoner,  being  also  a  member  of  the 
the  society,  was  a  partner,  and  could  not  be  convicted  of  stealing  his 
own  propert}'. 

Williams,  J.  There  is  the  well-known  case  of  a  man,  when  the 
hundred  was  liable,  being  convicted  of  stealing  his  own  money  from 
his  own  servant.     Foster,  123,  124. 

WiGHTMAN,  J.  These  sovereigns  were  not  part  of  the  goods  in  the 
shop,  but  money  for  which  Holt  had  to  account.  He  cannot  be  treated 
as  a  servant,  because  it  would  then  follow  that  he  was  one  of  the 
persons  appointing  himself. 

Martin,  B.  Holt  had  got  the  sovereigns  in  his  own  pocket,  as  it 
were,  and  suppose  that  while  walking  in  the  street  some  one  had 
picked  his  pocket  of  them,  could  not  the  thief  have  been  indicted 
for  stealing  his  money? 

T.  Campbell  Foster.  The  prisoner  was  assisting  in  the  shop  as  a 
partner  without  salary. 


698  ADAMS   V.   STATE.  [CHM'.  VTII. 

WiGHTMAN,  J.     No.     Holt  bad  the  sole  management  of  the  shop. 

Williams,  J .  How  does  this  case  differ  from  Rex  v.  Bramley,  R. 
&  R.  478,  where  a  member  of  a  benefit  society  entered  the  room  of  a 
person  with  whom  a  box  containing  the  funds  of  the  society  was 
deposited,  and  took  and  carried  it  away,  and  it  was  held  to  be 
{arceny,  and  the  property  to  be  well  laid  in  the  bailee? 

Pollock,  C.  B.  No  doubt  a  man  who  has  pawned  his  watch  with  a 
pawnbroker  may  be  indicted  for  stealing  it  from  the  pawnbroker. 
The  present  case  finds  that  Holt  was  in  possession  of  the  shop,  and 
had  the  sole  management,  and  was  answerable  for  the  safety  of  all 
the  property  and  money  coming  to  his  possession  in  the  course  of  such 
management,  and  therefore  he  may,  quoad  hoCj  be  treated  as  the 
owner. 

By  the  Court  :  Conviction  affirmed. 


ADAMS   V.    STATE. 

Supreme  Court  of  New  Jersey.     1883. 

[Reported  45  New  Jerseij  Law,  448.] 

Knapp,  J.  The  plaintiff  in  error  was  indicted  for  grand  larceny  at 
the  May  term  of  the  Union  Oyer  and  Terminer,  the  indictment  charg- 
ing her  with  having  feloniously  stolen  certain  goods  and  chattels  as 
the  property  of  Thomas  W.  Sloan,  above  the  value  of  $20.  She  was 
tried  before  the  Quarter  Sessions  of  that  county,  convicted  upon  the 
trial,  and  sentenced  to  nine  months'  imprisonment  at  hard  labor.  The 
property  was  levied  upon  by  Sloan  as  the  property  of  Catherine 
Adams,  under  an  execution  which.  Sloan  held,  as  constable,  against 
^er",  the  constable  allowed  the  goods  to  remain  at  the  house  of  the 
plaintiff  in  error,  the  place  of  the  levy,  she  being  informed  of  the  levy. 
Before  the  time  for  sale  under  the  execution,  the  plaintiff  in  error 
took  and  disposed  of  the  goods. 

The  case  comes  up  on  exceptions  to  the  refusal  of  the  court  to 
charge  as  requested,  and  upon  the  charge  as  made.  The  assignments 
of  error  present  the  question  whether  larceny  may  be  committed  by  the 
general  owner  of  property  in  taking  it  from  one  who  has  the  special 
ownership,  without  felonious  intent  in  such  taking. 

It  is  impossible,  under  ordinary  circumstances,  for  one  to  commit 
larceny  in  taking  possession  of  his  own  property,  and  the  general 
owner  of  goods,  in  their  lawful  possession,  has  full  dominion  and  con- 
trol over  such  goods ;  but  it  seems  to  be  well  settled  in  the  law  that 
larceny  may  be  committed  by  a  man  stealing  his  own  property,  if  the 
taking  be  animo  farandi,  or  with  a  fraudulent  design  to  charge  the 
bailee  with  the  value  of  it.  There  is  a  passage  found,  as  early  as 
the  time  of  the  Year  Books,  in  which  it  is  said,  "  If  I  bail  to  you 


'A-iX^'i 


0-/^>UA^iy 


SECT.  VI.]  ADAMS    V.    STATE.  699 

certain  goods  to  keep,  and  then  retake  them  feloniously,  that  I  should 
be  hung  for  it,  and  yet  the  property  was  in  me."  ^  This  passage  is 
found  repeated  in  all  the  leading  criminal  treatises,  but  with  the 
addition  that  the  goods  be  taken  with  the  fraudulent  design  to  charge 
the  bailee  with  tlieir  value.  1  Hale  P.  C.  513  ;  4  BI.  Com.  334  ;  2 
East  P.  C.  558  ;  Ros.  Crim.  Ev.  650.  As  if  one  delivers  his  goods  to 
another,  as  his  servant  or  bailee,  and  then  steals  them  from  such 
servant  or  bailee,  with  a  fraudulent  intent  to  charge  him  with  their 
value,  this  would  be  larceny  in  the  owner,  although  he  might  have 
had  their  possession  through  the  lawful  assertion  of  his  title.  On  an 
indictment  for  larceny  against  such  general  owner,  the  property  in  the 
goods  stolen  may  be  laid  as  that  of  the  special  owner.  The  general 
property  of  goods  levied  on  by  execution  is  in  the  debtor,  aud  remains 
in  him  until  they  are  sold  for  the  purpose  of  satisfying  the  execution  ; 
but  the  officer  who  levies  acquires  a  special  property  in  those  goods, 
which  entitles  him  to  their  possession  until  satisfaction  be  made  of  the 
execution.  Dillenback  v.  Jerome,  2  Cow.  293  ;  Smith  v.  Burtis,  6 
Johns.  196.  The  defendant  asked  the  court  to  charge  the  jury  that 
there  was  a  variance  in  the  allegation  of  property  in  Sloan,  and  the 
proof  upon  the  trial ;  that,  therefore,  the  defendant  should  not  be 
convicted.  This  the  court  refused  to  charge,  and  the  evidence  is 
brought  here  for  examination  as  to  the  correctness  of  the  court's 
action  in  so  refusing ;  but  upon  the  evidence  it  appears  tliat  Sloan,  as 
already  stated,  had  a  special  property  in  the  goods,  and  they  were 
therefore  properly  laid  as  his  goods  in  the  indictment.  There  was 
no  error  in  refusing  so  to  charge.^ 

The  next  exception  is  as  to  what  the  court  did  charge  on  the  subject 
of  ownership.  By  the  bill  of  exceptions  it  appears  that  the  court  said 
that  by  virtue  of  the  execution  and  levj'  "  the  constable  became  the 
owner  of  the  goods  levied  upon  until  sold  bv  him,  and  that  if  she  took 
the  goods,  or  assisted  anv  one  else  in  the  taking,  she  is  guilty."  The 
part  of  the  charge  contained  in  this  bill  of  exceptions  is  all  we  have  of  it. 
It  would  seem  to  be  a  sufficient  statement  of  the  law  defining  the  rights 
which  the  constable  acquires  in  virtue  of  a  lev}'.  It  was  made  by  the 
court  in  answer  to  the  objection  that  the  true  ownership  was  not  alleged 
in  the  indictment,  and  as  respects  that  question  the  instruction  of 
the  court  was  correct.  The  constable's  ownership  was  a  qualified  one, 
it  is  true,  but  it  was  sufficient  to  support  the  averment.  The  further 
statement  in  that  portion  of  the  charge,  namely,  "  that  if  she  took  the 
goods  or  assisted  any  one  else  in  taking  them,  she  is  guilty,"  may  be 
subject  to  more  criticism.  It  certainly'  is  not  a  full  presentation  of  the 
law.  It  is  not  every  sort  of  taking  of  these  goods  that  would  make  her 
criminally  liable.  It  might  have  amounted  to  no  more  than  a  trespass 
or  a  conversion  of  the  property-  as  against  the  officer.  The  goods  were 
left  in  her  custody-  by  the  officer.    As  between  them  she  may  have  been 

1  Y.  B.  7  Hen.  VI.  43.  — Ed. 

*  Ace.  People  v.  Long,  50  Mich.  249;  Palmer  v.  People,  10  Wend.  165. — Ed. 


700  ADAMS   V.    STATE.  [CHAP.  VIII. 

considered  as  a  mere  receiptor  for  the  goods,  with  the  right  in  the  officer 
to  deprive  her  of  her  possession  and  assume  it  himself.  But  she  not  onl}- 
had  their  actual  custod}',  but  was  as  well  the  general  owner,  and  could 
at  any  time  before  sale,  by  paying  the  judgment,  remove  the  officer's 
hands  entirely  from  her  property*.  Now,  unless  her  taking  the  goods 
was  under  such  circumstances  as  in  some  way  to  fraudulently  charge 
him  with  their  value,  it  is  difficult  to  find  any  recognized  rule  of  criminal 
law  that  would  hold  her  answerable  for  larceny. 

This  case  fails  in  resemblance  to  that  of  Palmer  v.  People,  10  Wend. 
166,  in  this  important  feature  :  Palmer  was  convicted  of  having  felo- 
niouslj'  stolen  property  of  one  Jennings,  who,  as  constable,  had  levied 
upon  property  by  virtue  of  an  execution  against  Palmer.  The  goods,  by 
the  officer's  consent,  remained  with  Palmer,  who  subsequently  sold  the 
shingles  and  charged  the  constable  with  having  taken  them  awa}',  and 
brought  suit  against  him  for  their  value  upon  that  false  allegation. 
This  proof  was  held  sufficient,  on  the  ground  that  it  charged  a  felo- 
nious taking  of  his  own  propert}',  with  intent  to  charge  the  constable 
with  the  value  of  it,  bringing  the  case  within  the  rule  above  stated  as 
the  ground  of  criminal  liability.  In  this  charge  is  found  the  broad 
proposition  that  any  sort  of  taking  or  conversion  by  the  general  owner 
of  property'  left  in  her  possession  by  a  constable  possessed  of  the  rights 
which  a  \Q\y  gives  him,  is  a  criminal  act,  and  that  of  larcen}'.  No 
fraudulent  or  evil  design  existing  in  the  mind  of  the  defendant  is 
charged  or  intimated  to  be  a  necessary  element  of  guilt.  It  would  not 
be  every  taking  by  a  mere  stranger  of  these  goods  from  the  possession 
of  the  constable  that  would  amount  to  larceny.  A  felonious  intent 
would  be  a  requisite  ingredient  in  such  crime.  A  conversion  of  the 
goods  by  a  stranger  who  had  been  appointed  their  keeper  by  a  con- 
stable, would  not  have  been  a  crime  but  a  civil  wrong  merely.  To  hold 
the  general  owner  in  possession  to  a  severer  rule  seems  to  me  to  savor 
of  illegal  severity.  I  am  unable,  in  the  researches  I  have  made,  to 
find  any  case  wliich  warrants  the  ascription  of  criminality  to  such  facts. 
The  case  of  Rex  v.  Wilkinson,  Russ.  &  Ry.  470,  which  goes  as  far  as 
any  other  that  I  have  found,  presented  the  features  of  flagrant  fraud  on 
the  part  of  the  defendants,  who  were  the  real  owners  of  the  property, 
upon  either  the  prosecutors  or  upon  the  Crown.  As  to  which,  the  judges 
were  divided  in  opinion.  If  we  are  permitted  to  look  into  the  evidence 
which  is  handed  us  with  the  record,  one  can  scarcely  escape  the  conclu- 
sion that  if  the  rule  had  been  stated  to  the  jury  with  the  proper  quali- 
fication, they  must  have  failed  to  find  in  it  evidence  of  such  felonious 
design  as  would  have  raised  the  offence  above  that  of  a  mere  civil 
injury. 

Whether  the  judge  in  other  parts  of  his  charge  qualified  the  expres- 
sions in  the  opinion  excepted  to,  we  have  no  means  of  knowing ;  the 
charge  is  not  before  us.  We  have  nothing  but  this  pointed  statement 
of  his  views  of  the  law.  We  must  assume  that  this  embraced  his  entire 
instruction  to  the  jury  upon  the  legal  requisites  of  guilt,  and  it  was 


SECT,  VI.]  KEX   V.    CABBAGE.  701 

erroneous  in  a  way  that  must  have  prejudiced  the  defendant  in  her 
trial.  I  think  the  judgment,  for  this  error,  should  be  reversed  and 
a  new  trial  ordered. 


REX  V.    CABBAGE. 
Crown  Case  Reserved.     1815. 

[Reported  Russell  cj-  Ryan,  292.] 

The  prisoner  was  tried  before  Thomson,  C.  B.,  at  the  Lent  Assizes 
for  the  county  of  Lancaster  in  the  3'ear  1815,  on  an  indictment  for 
feloniously  stealing,  taking,  and  leading  away  a  gelding,  the  property 
of  John  Camplin. 

The  second  count  charged  the  prisoner  with  feloniousl}',  unlawfully, 
wilfull}',  and  maliciously  killing  and  destroying  a  gelding,  the  property 
of  the  said  John  Camplin,  against  the  statute,  etc. 

The  counsel  for  tlie  prosecution  elected  to  proceed  upon  the  first 
count. 

It  appeared  that  the  gelding  in  question  was  missed  by  the  prosecu- 
tor from  his  stables  on  Monday,  the  28th  of  Februar}',  1815.  The 
stable-door,  it  appeared,  had  been  forced  open.  The  prosecutor  went 
the  same  day  to  a  coal-pit,  about  a  mile  from  the  stable,  where  he  saw 
the  marks  of  a  horse's  feet.  This  pit  had  been  worked  out  and  had  a 
fence  round  it,  to  prevent  persons  from  falling  in ;  one  of  the  rails  of 
this  fence  had  been  recenth'  knocked  off.  A  man  was  sent  down  into 
the  pit,  and  he  brought  up  a  halter,  which  was  proved  to  be  the  halter 
belonging  to  the  geldino;.  In  about  three  weeks  after  the  finding  of 
the  halter,  the  gelding  was  drawn  up  from  the  coal-pit  in  the  presence 
of  the  prosecutor,  who  knew  it  to  be  his.  The  horse's  forehead  was 
ver}'  much  bruised,  and  a  bone  stuck  out  of  it.  It  appeared  that  at 
the  time  this  gelding  was  destro^-ed,  a  person  of  the  name  of  Ilowarth 
was  in  custod}'  for  having  stolen  it  in  August,  1813,  and  that  the  prose- 
cutor, Camplin,  had  recovered  his  gelding  again  about  five  weeks  after 
it  was  taken.  Howarth  was  about  to  take  his  trial  for  this  offence 
when  the  gelding  was  destroyed  in  tlie  manner  stated.  The  prisoner 
Cabbage  was  taken  into  custody  on  the  27th  of  March,  1815  ;  and  on 
his  apprehension  he  said  that  he  went  in  company  with  Anne  Howarth 
(the  wife  of  Ilowarth,  who  was  tried  for  stealing  the  said  gelding)  to 
Camplin's  stable-door,  and  that  the}'  together  forced  open  the  door  and 
brought  the  horse  out.  They  then  went  along  the  road  till  the}-  came 
to  the  coal-pit  before  mentioned,  and  there  they  backed  the  horse  into 
the  pit. 

It  was  objected  b}'  the  prisoner's  counsel  that  the  evidence  in  this 
case  did  not  prove  a  larcenj'  committed  of  the  horse  ;  that  the  taking 


702  REX    V.    MORFIT.  [chap.  VIII. 

appeared  not  to  have  beeu  done  with  intention  to  convert  it  to  the  use 
of  the  taker,  animo  furandi  et  lucri  causa. 

Thomson,  C.  B.,  overruled  the  objection,  and  the  prisoner  was  con- 
victed upon  the  first  count  of  the  indictment  for  stealing  the  horse. 
Judgment  was  passed  on  him,  but  the  learned  Chief  Baron  respited  the 
execution  to  take  the  opinion  of  the  judges  as  to  the  propriety  of  the 
conviction. 

In  Piaster  Term,  1815,  the  judges  met  to  consider  this  case,  and  the 
majority  of  the  judges  held  the  conviction  right.  Six  of  the  learned 
judges,  namel}',  Richards,  B.,  Bayley,  J.,  Chambke,  J.,  Thomson, 
C.  B.,  GiBBs,  C.  J.,  and  Lord  Ellenborough,  held  it  not  essential  to 
constitute  the  offence  of  larceny  that  the  taking  should  be  lua'i  causa  ; 
they  thought  a  taking  fraudulenth',  with  an  intent  wholly  to  deprive 
the  owner  of  the  propert}',  sufficient;  but  some  of  the  six  leanied 
judges  thought  that  in  this  case  the  object  of  protecting  Howarth  by 
the  destruction  of  this  animal  might  be  deemed  a  benefit,  or  lucri 
'causa.  Dallas,  J.,  Wood,  B.,  Graham,  B.,  Le  Blanc,  J.,  and  Heath, 
J.,  thought  the  conviction  wrong. ^ 


REX   V.   MORFIT. 
Crown  Case  Reserved.     1816. 

[Reported  Russell  Sf  Ryan,  307.] 

The  prisoners  were  tried  before  Mr.  Justice  Abbott,  at  the  Maid- 
stone Lent  Assizes,  in  the  year  1816,  upon  an  indictment  for  feloni- 
oush'  stealing  two  bushels  of  beans,  value  five  shillings,  the  goods  of 
John  Wimble. 

On  the  trial  it  was  proved  that  the  prisoners  were  servants  in  hus- 
bandry to  Mr.  Wimble  and  had  the  care  of  one  of  his  teams  ;  that  Mr. 
Wunble's  bailiff  was  in  the  habit  of  delivering  out  to  the  prisoners  at 
stated  periods,  from  a  granary  belonging  to  him,  and  of  which  his 
bailiff  kept  the  key,  such  quantity  of  beans  as  Mr.  Wimble  thought  fit 
to  allow  for  the  horses  of  this  team.  The  beans  were  to  be  split  and 
then  given  by  the  prisoners  to  the  horses.  It  appeared  that  the  gran- 
ary-door was  opened  by  means  of  a  false  key  procured  for  that  purpose, 
which  was  afterwards  found  hid  in  the  stable  ;  and  that  about  two 
bushels  of  beans  were  taken  away  on  the  day  after  an  allowance  had 
been  delivered  out  as  usual,  and  nearly  that  quantity  of  whole  beans 

1  Arc.  Williams  v.  State,  52  Ala.  411  ;  People  i-.  Juarez,  28  Cal.  380;  Keely  v. 
State,  14  Ind.  36  (semhle)  ;  Warden  v.  State,  60  Miss.  638;  Delk  i'.  State,  64  Miss. 
77  ;  State  v.  Ryan,  12  Nev.  401  ;  State  v.  Caddie,  35  W.  Va.  73.  Contra,  Pence  v 
State,  110  Ind.  95  ;  People  v.  Woodward,  31  Hun,  57.  See  also  Hamilton  i:  State,  35 
Miss.  214;  State  v.  Slingerland,  19  Nev.  135;  State  v.  Davis,  38  N.  J.  L.  176;  State  v. 
Brown,  3  Strob.  508  [semble).  —  Ed. 


SECT.  VI.]  REX   V.   DICKINSON.  703 

was  found  in  a  sack,  concealed  under  some  chaff  in  a  chaff-bin  in  the 
stable. 

The  learned  judge  desired  the  jury  to  sa}-  whether  they  thought  both 
the  prisoners  were  concerned  in  taking  the  beans  from  the  granary  ; 
and  also  whether  they  intended  to  give  them  to  Mr.  Wimble's  horses. 
The  jur}'  answered  both  questions  in  the  affirmative. 

Mr.  Justice  Bayley  had,  at  the  same  Assizes,  directed  a  verdict  of 
acquittal  under  circumstances  of  the  like  nature  ;  but  Abbott,  J.,  was 
informed  that  the  late  Mr.  Justice  Heath  had  man}'  times  held  this 
offence  to  be  larceny- ;  and  that  there  had  been  several  convictions 
before  him  ;  and  also  that  to  a  question  put  by  the  grand  jury  at  Maid- 
stone to  tlie  late  Lord  Chief  Baron  Macdonald,  he  had  answered  that 
in  his  opinion  this  offence  was  a  larceny. 

On  account  of  this  contrariety'  of  opinion,  the  learned  judge  before 
whom  this  case  was  tried  thought  it  advisable  to  submit  the  question 
to  all  the  judges,  the  offence  being  a  very  common  one  ;  a  verdict  of 
guilt}'  was  taken,  but  judgment  respited  until  the  ensuing  Assizes. 

In  Easter  Term,  1816,  eleven  of  the  judges  met  and  considered  this 
case.  Eight  of  tlie  judges  held  that  this  was  felony  ;  that  the  purpose 
to  which  the  prisoners  intended  to  appl}'  the  beans  did  not  vary  the 
case.  It  was,  however,  alleged  by  some  of  the  judges  that  the  addi- 
tional quantit}'  of  beans  would  diminish  the  work  of  the  men  who  had 
to  look  after  the  horses,  so  that  the  master  not  only  lost  his  beans,  or 
had  them  applied  to  the  injury  of  the  horses,  but  the  men's  labor  was 
lessened,  so  that  the  lucr'i  causa,  to  give  themselves  ease,  was  an 
ingredient  in  the  case.  Graham,  B.,  Wood,  B.,  and  Dallas,  J., 
thought  this  not  a  felony,  and  that  the  conviction  was  wrong. ^ 


REX  V.   DICKINSON.  / 

Crown  Case  Keserved.     1820. 

[Reported  Russell  ^-  Ryan,  420.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley  at 
the  summer  Assizes  for  the  county  of  Lancaster,  in  the  year  1820,  for 
stealing  a  straw  bonnet,  some  other  articles  of  female  apparel,  and 
a  box. 

It  appeared  that  the  prisoner  entered  the  house  where  the  things 
were  in  the  night,  through  a  window  which  had  been  left  open,  and  took 
the  things,  which  belonged  to  a  very  young  girl  whom  he  had  seduced, 
and  carried  them  to  a  hay-mow  of  his  own,  where  he  and  the  girl  had 
twice  before  been. 

The  jury  thought  the  prisoner's  object  was  to  induce  the  girl  to  go 

1  Ace.  Reg.  V.  Privett,  1  Den.  C.  C.  193.     See  Stat.  26  and  27  Vict.  c.  103,  §  1  —Eft 


704  REGINA   V.   SPURGEON.  [CHAP.  VIIl. 

again  to  the  hay-mow  that  he  might  again  meet  her  there,  but  that  he 
cFid  not  mean  ultimately  to  deprive  her  of  them. 

""Tlie  learned  judge  doubted  whether  this  was  a  felony,  and  discharged 
the  prisoner  upon  bail,  and  reserved  the  ease  for  the  consideration  of 
the  judges. 

In  Michaelmas  term,  1820,  the  judges  met.  They  held  that  the 
taking  was  not  felonious,  and  directed  application  to  be  made  for  a 
pardon.* 


REX  V.    CRUMP. 

Worcester  Assizes.     1825. 

[Repoi'ted  1  Carrington  Sf  Payne,  658.] 

This  prisoner  was  indicted  for  stealing  a  horse,  three  bridles,  two 
saddles,  and  a  bag,  the  property  of  Henry  Bateman. 

It  appeared  that  he  got  into  the  prosecutor's  stable,  and  took  away 
the  horse  and  the  other  property  all  together  ;  but  that,  when  he  had 
got  to  some  distance,  he  turned  the  horse  loose,  and  proceeded  on  foot 
to  Tewkesbury,  where  he  was  stopped  attempting  to  sell  the  saddles. 

Garrow,  B.,  left  it  to  the  jury  to  say,  whether  the  prisoner  had  any 
intention  of  stealing  the  horse  ;  for  that,  if  he  intended  to  steal  the 
other  articles,  and  only  used  the  horse  as  a  mode  of  carrying  off  the 
other  plunder  more  conveniently,  and,  as  it  were,  borrowed  the  horse 
for  that  purpose,  he  would  not  be,  in  point  of  law,  guilty  of  stealing 
the  horse. 

Verdict^  Not  guilty  of  stealing  the  horse j  Guilty  of  stealing  the  rest 
"^   of  the  ][)ro]^erty  J^  ... 


REGINA  V.    SPTJRGEON. 

Central  Criminal  Court.     1846. 

[Reported  2  Cox  C.  C.  102.] 

The  prisoner  was  indicted  for  stealing  a  bag  and  some  papers,  the 
property  of  John  Philpotts.  From  the  evidence  it  appeared  that  the 
prosecutor,  who  was  an  attorney's  clerk,  had  left  the  bag  on  a  bench 
in  the  outer  room  of  the  Master's  office  of  the  Queen's  Bench  while  he 
went  into  the  inner  office  to  transact  some  business.  On  entering  the 
latter  he  saw  the  prisoner,  who  was  asking  charity,  and  who  in  a  few 

1  Ace.  Cain  v.  State,  21  Tex.  App.  21.     And  see  Reg.  v.  Jones,  I  Uen.  C  C  18S; 
U.  S.  V.  Durkee,  1  McAll.  196.  — Ed. 
3  Ace.  Dove  I'.  State,  37  Ark.  261 ;  State  v.  York,  5  Harr.  493.  —  Ed. 


SECT.  VI.]  EEGINA   V.   GARDNER.  705 

minutes  quitted  the  room.  Shortly  afterwards  the  prosecutor,  on  re- 
turning to  the  place  where  the  bag  had  been  left,  discovered  that  it 
was  gone.  As  he  was  returning  to  his  employer's  chambers,  he  met 
the  prisoner  in  the  street  with  the  bag  in  his  possession.  On  being 
given  into  custody  the  prisoner  said  that  he  took  the  bag  believing 
that  it  had  been  accidentally  left  in  the  office  by  the  owner,  and  that 
his  inteution  was  to  restore  it  to  him.  It  appeared  that  on  a  former 
occasion  some  papers  which  had  been  missed  by  the  prosecutor  were 
brought  to  his  office  by  the  prisoner,  who  received  a  shilling  for  his 
trouble. 

The  Recorder  (after  consulting  Mr.  Justice  Erie),  in  summing  up 
the  case  to  the  jury.  —  You  must  be  satisfied  that  the  prisoner  took 
this  property  agaiust  the  consent  of  the  owner,  and  for  the  purpose 
of  gain.  I  am  of  opinion  that  it  is  not  essential  to  the  sustaining  this 
charge,  that  he  had  an  intention  of  converting  this  bag  permanently 
to  his  own  use.  1  will  ask  you,  first,  whether  you  think  he  took  it 
with  the  intent  to  exact  a  reward  from  the  owner  for  its  restoration, 
and  with  a  determination  not  to  restore  it  unless  such  reward  were 
given  him.  If  such  is  your  view  of  the  circumstances,  I  shall  have  no 
hesitation  in  saying  that  the  prisoner  has  committed  larceny.  Or, 
secondly,  do  you  think,  that  having  reasonable  grounds  for  believing 
that  the  bag  belonged  to  some  person  in  the  inner  office,  who  had 
deposited  it  there  for  a  short  time  until  he  should  return  for  it,  the 
prisoner  took  it  with  an  intention  of  returning  it  absolutely,  and  at 
all  events  taking  the  chance  of  any  reward  being  given  him  for  the 
pretended  service  ?  P^ven  in  this  case  I  am  of  opinion  that  he  would 
be  guilty  of  larceny  ;  but  I  would  reserve  that  question  for  the  opinion 
of  the  judges  before  I  passed  sentence. 

The  jury  returned  the  following  verdict :  — 

Guilty  of  taking  the  property  in  order  to  exact  a  reward^  and  the 
prisoner  voould  not  have  delivered  it  up  without  such  reward.^ 


I 


REGINA  V.  GARDNER. 

Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  253.] 

The  following  case  was  reserved  at  the  Middlesex  Sessions. 

Edward  Gardner  was  tried  on  an  indictment  charging  him  in  the  first 
count  with  stealing  one  banker's  cheque  and  valuable  security  for  the 
paj-ment  of  £82  19s.,  and  of  the  value  of  £82  19s.,  and  one  piece  of 
stamped  paper  of  the  property  of  James  Goldsmith. 

1  Ace.  Reg.  V.  O'Donnell,  7  Cox  C.  C.337;  Com.  v.  Mason,  105  Mass.  163;  Berrju 
State,  31  Oh.  St.  219.  —  Ed. 


706  BEGIN  A   V.    GARDNER.  [CHAP.  VIII, 

In  the  second  count  the  property  was  stated  to  be  the  property  of 
Thomas  Boucher. 

It  appeared  from  the  evidence  of  Thomas  Boucher,  a  lad  of  fourteen, 
that  he  found  the  cheque  in  question ;  that  having  met  the  prisoner, 
Gardner,  in  whose  service  he  had  formerly  been,  he  showed  it  to  hun  ; 
that  the  prisoner  (Thomas  Boucher  being  unable  to  read)  told  him  it 
was  only  an  old  cheque  of  the  Royal  British  Bank:  that  he  wished  to 
show  it  to  a  friend,  and  so  kept  the  cheque  ;  that  Boucher  very  sliurtly 
on  the  same  day  went  to  prisoner's  shop  and  asked  for  the  cheque  ; 
that  the  prisoner  from  time  to  time  made  various  excuses  for  not  giving 
up  the  cheque,  and  that  Boucher  never  again  saw  the  cheque. 

It  also  appeared  that  the  prisoner  had  an  interview  with  Goldsmith, 
in  which  he  said  that  he  knew  the  cheque  was  Goldsmith's,  asked  what 
reward  was  offered,  and  upon  being  told  5s.,  said  he  would  rather  light 
his  pipe  with  it  than  take  55. 

The  cheque  has  never  been  received  either  by  Goldsmith  or  Boucher, 
though  there  was  some  evidence  (not  satisfactory)  by  the  prisoner's 
brother  of  its  having  been  inclosed  in  an  envelope  and  put  under  the 
door  of  Goldsmith's  shop. 

The  jury  found  "That  the  prisoner  took  the  cheque  from  Thomas 
Boucher  in  the  hopes  of  getting  the  reward ;  and,  if  that  is  larceny,  we 
find  him  guilt}'." 

Thereupon  the  judge  directed  a  verdict  of  guilty  to  be  entered,  and 
reserved  for  the  opinion  of  this  court  whether  upon  the  above  finding 
the  prisoner  was  properly  convicted. 

November  15.  Jjest  (with  him  Hesley)  for  the  prisoner  argued  that 
the  finding  of  the  jur}^  disproved  the  felonious  intent.  In  Reg.  v.  York, 
3  Cox  Grim.  Cas.  181,  a  similar  finding  of  the  jury  was  held  to  amount 
to  "  Not  Guilt}'."     (He  was  then  stopped.) 

Kern}?,  for  the  prosecution.  The  defendant  read  the  cheque,  and 
knew  the  owner.  In  this  respect  the  case  differs  from  Reg.  v.  Christo- 
pher, 8  Cox  Grim.  Cas.  91 ;  28  L.  J.  35,  M.  C,  and  resembles  Reg.  v. 
Moore,  8  Cox  Grim.  Cas.  416  ;  30  L.  J.  77,  M.  C.  As  against  all  the 
world  but  the  true  owner,  the  boy,  Boucher,  was  the  owner,  and  the 
prisoner  took  the  cheque  from  him  against  his  will,  and  may  be  con- 
victed on  the  second  count. 

Pollock,  C.  B.  That  is  the  case  of  Armory  v.  Delamirie,  Str.  505, 
where  a  boy  was  held  entitled  to  sue  his  master  for  a  jewel  whicli  he 
had  found  and  his  master  had  taken  from  him.  It  was  not  supposed 
that  the  master  was  guilty  of  felony.  There  the  jewel  was  not  ear- 
marked, but  every  one  who  can  read  can  tell  to  wliom  a  cheque 
belongs.  Properly  speaking  a  cheque  is  not  a  chattel,  and  is  not 
the  subject  of  larceny.  AVe  must  take  it  that  the  cheque  was  stamped, 
and  being  stamped  it  was  not  a  piece  of  paper,  —  it  was  a  cheque. 

C^ir.  adv.  vult. 

November  22.  Pollock,  C.  B.  In  this  case  the  prisoner  was  con- 
victed of  stealing  a  cheque.     He  took  the  cheque  away  from  a  boy  who 


SECT.  VI.]  KEGINA    V.   TKEBILCOCK.  707 

found  it,  and  did  not  immediately  give  information  to  the  owner,  but 
withheld  it  iu  the  expectation  of  getting  a  reward.  The  taking  of  the 
cheque  from  the  finder  was  not  a  felonious  taking,  and  the  merely  with- 
holding it  in  the  expectation  of  a  reward  was  not  a  larceny. 

The  rest  of  the  court  concurring. ^  Conviction  quashed. 


REGINA  V.  TREBILCOCK. 

Crown  Case  Reserved,     1858. 

[Reported  7  Cox  C.  C.  408.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  in  and  for  the 
borough  of  Plymouth,  on  the  1st  day  of  January,  1858,  before  Charles 
Saunders,  P^sq.,  Recorder,  the  prisoner,  William  Trebilcock,  was  tried 
on  an  indictment  which  charged  him,  first,  with  a  larceny  upon  the 
Stat.  20  &  21  Vict.  c.  54,  §  4,^  in  having  as  bailee  of  plate,  the  property 
of  the  prosecutor,  fraudulently  converted  it  to  his  own  use  ;  secondly, 
with  a  common  larceny  of  the  same  plate.  The  jui-y  found  the  prisoner 
guilty  on  both  counts  of  the  indictment,  but  recommended  him  to  mercy, 
believing  that  he  intended  ultimately  to  return  the  property.  _  The 
question  for  the  opinion  of  the  court  is  v^^hether,  consistently  with  the 
ground  upon  which  the  jury  recommended  the  prisoner  to  mercy,  the 
conviction  was  right  upon  both  or  either  of  the  counts. 

The  case  was  this :  The  prosecutrix.  Miss  Palmer,  resided  at  Ply- 
mouth, and  going  to  London  for  eight  or  ten  days,  deposited  with  the 
prisoner,  a  tradesman  at  Pl^nnouth,  who  had  offered  to  take  care  of 
anything  for  her  during  her  absence,  a  chest  of  valuable  plate  for  safe 
custody  till  she  returned.  The  prisoner  had  been  told  that  the  prose- 
cutrix would  leave  a  parcel  with  him,  which  he  said  that  he  would  put 
in  his  iron  chest  to  keep  for  her.  When  the  chest  of  plate  was  placed 
in  the  prisoner's  hands  it  was  locked  (the  prosecutrix  keeping  the  key), 
then  covered  with  a  wrapper  sewed  together,  and  sealed  in  a  great  num- 
ber of  places,  and  then  tied  with  cord.  The  prisoner  was  not  informed 
of  the  contents  of  this  parcel,  nor  was  any  key  given  to  him.  In  a  day 
or  two  after  the  prosecutrix  left  for  London,  he  had  uncorded  the  chest, 
broken  the  seals,  taken  off  the  wrapper,  procured  a  key,  opened  the 
chest,  and  taken  out  a  part  of  the  plate,  and  offered  it  to  one  Woolf ,  at 
Plymouth,  as  a  security  for  the  advance  of  £50.  The  pawnbroker  took 
up  one  of  the  pieces  of  plate  which  bore  the  crest  and  also  a  superscrip- 

1  Ace.  Keg.  V.  York,  3  Cox  C.  C.  181  ;  Micheaux  v.  State,  30  Tex.  App.  660.  —  Ed. 

2  The  section  is  as  follows :  "  If  any  person  being  a  bailee  of  any  property  shall 
fraudulently  take  or  convert  it  to  his  own  use,  or  the  use  of  any  person  other  than 
the  owner  thereof,  although  he  shall  not  break  bulk  or  otherwise  deternxine  the  bail 
ment,  he  shall  be  guilty  of  larceny." 


708  KEGINA   V.   TREBILCOCK,  [CHAl'.  VIII. 

tion  with  the  name  of  Sir  George  Magrath  upon  it,  and  expressing  his 
disliKe  to  have  anything  to  do  with  it,  the  prisoner  said  that  he  was 
under  an  engagement  to  be  married  to  Lady  Magrath.  The  prosecutrix 
had  lived  with  Sir  George  Magrath,  and  when  he  died  the  plate,  among 
other  property,  came  into  her  possession.  Woolf  ultimately  declined 
any  advance  upon  it.  The  prisoner  then  communicated  by  letter  with 
another  pawnbroker  named  Druiff,  at  Newport  in  Monmouthshire,  with 
whom  the  prisoner  had  before  had  bill  transactions.  Druiff  came  to 
the  prisoner  at  Plymouth  and  advanced  him  £200,  taking  bills  for  the 
amount,  and  the  whole  chest  of  plate  worth  from  £500  to  £600,  as  a 
collateral  security  for  the  loan.  Druiff  took  the  plate  away  with  him 
to  Newport.  The  prisoner,  by  way  of  accounting  to  Druiff  for  the 
possession  of  the  plate,  represented  to  him  that  he  was  going  to  get 
married  to  the  lady  of  the  late  Sir  George  Magrath,  and  that  she  had 
given  him  the  plate  to  take  care  of  till  they  were  married.  The  prose- 
cutrix went  to  London  on  the  8th  day  of  November,  and  returned  on 
the  17th  of  the  same  month.  On  her  return  the  prosecutrix  tried  often 
to  see  the  prisoner,  but  could  not  do  so  till  the  26th.  "When  she  first 
saw  him  and  asked  him  for  the  parcel,  the  prisoner  said  he  would  send 
it  to  her  the  same  evening.  It  was  not  sent.  The  prosecutrix  went 
often  backwards  and  forwards  to  the  prisoner's  shop  and  private  resi- 
dence to  see  the  prisoner,  but  could  not  see  him  again  till  the  2d  ot 
December,  when  the  prosecutrix  insisted  upon  instantly  having  hei^ 
parcel.  The  prisoner  said  she  could  not  have  it  as  it  was  out  of  town,  he 
had  sent  it  to  Bristol ;  then  he  said  it  was  now  farther  than  Bristol,  that 
it  was  in  Wales,  but  that  he  would  write  a  letter  and  she  should  have 
it  on  Friday.  The  parcel  did  not  arrive.  The  prisoner  refused  to  tell 
in  whose  hands  it  was,  but  the  prosecutrix  had  learned  from  the 
prisoner's  father  that  Druiff  had  it.  The  inspector  of  police  went  to 
Newport  and  found  the  chest  of  plate  there,  but  Druiff  refused  to  give 
it  up  unless  upon  payment  of  the  £200  for  which  it  had  been  deposited 
with  him  as  security.  The  prisoner  could  not  redeem  it,  and  upon  the 
facts  being  made  known  to  the  prosecutrix  she  had  the  prisoner  taken 
into  custody  on  a  charge  of  stealing,  and  the  police  took  possession 
of  the  chest  of  plate  as  stolen  property. 

Upon  the  finding  of  the  jury,  with  the  recommendation  to  mercy 
above  stated,  the  counsel  for  the  prisoner  contended  that  to  support 
either  of  the  counts  in  the  indictment,  it  was  necessary  tliat  the  pris- 
oner should  have  intended  permanently  to  deprive  the  prosecutrix  of 
her  property,  and  that,  as  the  jury  believed  that  his  intention  was 
ultimately  to  return  it,  the  verdict  was  wrong. 

The  prisoner  was  committed  to  prison,  and  sentence  deferred  until 
the  opinion  of  the  judges  shall  have  been  obtained  upon  the  question 
raised.  If  the  court  shall  be  of  opinion  that  the  ground  upon  which 
the  jury  recommended  the  prisoner  to  mercy  may  consist  with  the 
verdict  upon  both  or  either  of  the  counts  of  the  indictment,  the  verdict 
to  stand  upon  both  or  either  of  the  counts  accordingly.     If  the  recom- 


SECT.  M.]  REGINA    V.    TliEBILCOCK.  709 

meudation  may  not  consist  with  the  verdict  on  either  count,  then  the 
verdict  to  be  set  aside,  and  a  verdict  of  not  guilty  to  be  recorded. 

E.  W.  Cox,  for  the  prisoner.  The  question  is  whether  the  recent 
statute  20  &  21  Vict.  c.  54,  §  4,  alters  the  general  law  of  larceny  in 
any  other  respect  than  making  a  bailee  liable. 

Lord  Campbell,  C.  J.  If  this  was  larceny  at  all,  it  was  larceny  at 
common  law.     The  statute  would  make  no  difference  in  this  respect. 

Coleridge,  J.  If  not  a  larceny  at  common  law,  the  new  statute 
would  not  make  it  such  ;  so  that  the  only  question  is  whether  the  pris- 
oner could  properly  be  convicted  of  larceny  at  common  law.  The  jury 
have  found  him  guilty. 

E.  W.  Cox.  Yes ;  but  they  recommended  him  to  mercy  on  a 
ground  which  shows  that  a  verdict  of  guilty  is  wrong.  They  found 
■\hat  he  intended  ultimately  to  return  the  property  to  the  owner. 

Crowder,  J.     That  is,  if  he  could  get  it  back  again. 

E.  W.  Cox.  The  law  on  this  subject  is  distinctly  laid  down  in  R.  v. 
HoUoway,  3  Cox  C.  C.  145  ;  and  still  more  recently  in  R.  v.  Poole 
and  Yeates,  7  Cox  C.  C.  373.  In  R.  v.  Holloway,  Parke,  B.,  said, 
that  in  order  to  constitute  larceny  there  must  be  the  intention  to  de- 
prive the  owner  wholly  of  his  property,  to  usurp  the  entire  dominion 
over  the  chattels  taken,  and  to  make  them  his  own  ;  and  Lord  Denman 
ased  similar  language,  putting  the  case  of  a  man  taking  a  horse,  with 
the  intention  of  ridiug  him  throughout  England,  and  then  returning 
him. 

Coleridge,  J.  But  in  this  case  the  jury  do  not  say  that  at  the  time 
of  the  taking  the  prisoner  intended  to  return  the  plate. 

Lord  Campbell,  C.  J.  On  the  contrary  they  negative  it  by  finding 
him  guilty. 

E.  W.  Cox.  It  is  necessarily  implied  in  their  statement  that  when 
he  parted  with  it  to  the  pledgee,  he  had  it  in  his  mind  to  get  it  back 
again  and  restore  it  to  the  owner. 

Lord  Campbell,  C.  J.  Your  general  proposition  of  law  is  right 
enough,  but  it  does  not  apply  to  this  case. 

JE.  W.  Cox.  If  the  court  interprets  the  expression  used  by  the  jury 
as  meaning  only  that  at  some  time  after  the  larceny  the  prisoner  in- 
tended to  return  the  property,  the  argument  founded  on  R.  v.  Holloway 
necessarily  fails.  But  that  could  not  be  the  meaning  of  their  finding. 
The  alleged  larceny  was  complete  at  the  moment  of  depositing  the  plate 
with  the  pledgee.  It  was  for  that  he  was  tried,  and  to  that  alone  was 
the  attention  oT  the  jury  directed.  They  had  nothing  to  do  with  any 
subsequent  intent.  Their  conclusion  could  have  had  reference  only  to 
the  felonious  act  charged  in  the  indictment,  and  to  the  moment  of 
committing  it,  and  if  they  were  of  opinion  that  he  had  then  an  inten- 
tion to  return  it,  of  which  there  is  no  doubt,  he  is  not  guilty  of 
larceny. 

Carter,  for  the  prosecution,  was  not  called  upon. 

Lord  Campbell,  C.  J.     The  general  proposition  contended  for  by 


710  KEGINA   V.   TREBILCOCK.  [CHAP.  VIII. 

Mr.  Cox  is  perfectly  correct.  To  constitute  larceny,  there  must  be  an 
intention  on  the  part  of  the  thief  completely  to  a[)propriate  the  property 
to  his  own  use  ;  and  if  at  the  time  of  the  asportation  his  intention  is  to 
make  a  mere  temporary  use  of  the  chattels  taken,  so  that  the  dominus 
should  again  have  the  use  of  them  afterwards,  that  is  a  trespass,  but 
not  a  felony ;  but  that  law  does  not  apply  to  this  case.  Here  there 
was  abundant  evidence  of  a  larceny  at  common  law  ;  abundant  evidence 
from  which  the  jury  might  find  that  the  prisoner  feloniously  stole  the 
plate  ;  and  the  jury  have  found  a  verdict  of  guilty.  But  they  have 
recommended  him  to  mercy,  and  accompanied  that  recommendation  with 
a  statement  as  to  the  prisoner's  intention  to  return  the  stolen  property. 
Now,  I  doubt  whether  what  the  jury  say  in  giving  their  reason  for 
recommending  the  prisoner  to  mercy,  is  to  be  considered  as  part  of 
their  finding ;  but  even  assuming  it  to  be  so,  all  that  they  say  is,  that 
he  intended  ultimately  to  return  the  property  ;  not  that  at  the  time  of 
the  wrongful  taking  he  originally  intended  to  make  a  merely  temporary 
use  of  it. 

Coleridge,  J.  I  am  of  the  same  opinion.  There  is  no  question 
about  the  law  in  this  case  ;  but  the  question  is  merely  as  to  the  facts. 
And  upon  the  facts  it  appears  that  the  prisoner  had  put  it  out  of  his 
power  to  return  the  plate  which  he  had  taken.  Then  what  must  we  do 
in  order  to  make  sense  of  the  finding  of  the  jury?  It  is  to  be  observed 
that  the  recommendation  to  mercy  in  itself  assumes  that  the  verdict  of 
guilty  is  correct ;  but  the  jury  seem  to  have  thought  that  the  prisoner 
had  it  in  his  mind  at  some  uncertain  time,  if  he  could  get  hold  of  it 
again,  to  restore  the  property,  and  they  might  consider  that  a  sufficient 
reason  for  recommending  him  to  mercy.  That  interpretation  makes 
sense  of  their  finding,  whilst  the  construction  put  upon  it  by  Mr.  Cox 
renders  their  conduct  quite  inconsistent  and  insensible. 

Martin,  B.  I  am  of  opinion  that  the  recommendation  to  mercy 
and  the  words  which  accompanied  it  were  no  part  of  the  verdict  at  all, 
and  that  when  the  jury  said  guilty  there  was  an  end  of  the  matter,  so 
far  as  the  verdict  was  concerned.  But  I  also  think  that  even  if  it  did 
form  part  of  the  verdict,  it  would  not  have  the  effect  of  bringing  it 
within  the  principle  of  the  cases  on  which  Mr.  Cox  relies.  It  seems  to 
me  quite  clear  that  this  prisoner  stole  the  plate,  and  then  pledged  it  for 
£200,  and  I  think  that  in  so  doing  he  "  usurped  the  entire  dominion  of 
it "  within  the  meaning  of  that  expression  as  used  by  Parke,  B.,  in  the 
case  cited.  If,  therefore,  a  special  verdict  had  been  found  in  the  very 
terms  used  by  the  jury,  when  they  recommended  the  prisoner  to  mercy, 
I  should  have  said  that  he  was  still  guilty  of  larceny. 

Crowder,  J.  It  seems  to  me,  also,  that  upon  the  facts  of  this  case 
no  other  rational  conclusion  could  be  arrived  at,  except  that  the  prisoner 
stole  the  plate.  He  broke  open  the  box,  and  took  out  the  plate,  and 
stole  it,  but  the  jury  recommended  him  to  mercy  because  they  thought 
that  he  had  an  intention  of  ultimately  restoring  it.  Probably  it  very 
often  happens  that  when  stolen  goods  aie  pawned,  there  is  an  intention 


SECT.  VI.]  REGINA    V.    HOLLOWAY.  711 

to  get  them  back  again,  if  the  person  pawning  them  should  ever  be  able 
to  do  so,  and  in  that  ease  to  return  them  ;  but  such  an  intention  affords 
no  ground  for  setting  aside  a  verdict  of  guilty,  when  the  offence  of 
larceny  is  satisfactorily  proved  by  the  evidence. 

Watson,  B.  1  also  think  that  this  is  the  clearest  case  of  larceny 
possible,  though  the  jury  have  recommended  the  prisoner  to  mercy, 
because  they  thought  that  he  would  ultimately  have  restored  the 
property  if  he  could  have  got  it  back. 

Conviction  affirmed.^ 


REGINA  V.   HOLLOWAY. 
Crown  Case  Reserved.     1849. 

[Reported  3  Cox  C.  C.  241.] 

The  prisoner,  William  Holloway,  was  indicted  at  the  General  Quar- 
ter Sessions,  holden  in  and  for  the  borough  of  Liverpool,  on  Decem- 
ber 4th,  1848,  for  stealing  within  the  jurisdiction  of  the  court  one 
hundred  and  twenty  skins  of  leather,  the  property  of  Thomas  Barton 
and  another. 

Thomas  Barton  and  another  were  tanners,  and  the  prisoner  was  one 
of  many  workmen  employed  by  them  at  their  tannery,  in  Liverpool,  to 
dress  skins  of  leather.  iSkins  when  dressed  were  delivered  to  the  fore- 
man, and  every  workman  was  paid  in  proportion  to  and  on  account  of 
the  work  done  by  himself.  The  skins  of  leather  were  afterwards  stored 
in  a  warehouse  adjoining  to  the  workshop.  The  prisoner,  by  opening 
a  window  and  removing  an  iron  bar,  got  access  clandestinely  to  the 
warehouse,  and  carried  away  the  skins  of  leather  mentioned  in  the  in- 
dictment, and  which  had  been  dressed  by  other  workmen.  The  pris- 
oner did  not  remove  these  skins  from  the  tannery ;  but  they  were  seen 
and  recognized  the  following  day  at  the  porch  or  place  where  he  usually 
worked  in  the  workshop.  It  was  proved  to  be  a  common  practice  at 
the  tannery  for  one  workman  to  lend  work,  that  is  to  say,  skins  of 
leather  dressed  by  him,  to  another  workman,  and  for  the  borrower  in 
such  case  to  deliver  the  work  to  the  foreman  and  get  paid  for  it  on  his 
own  account,  and  as  if  it  were  his  own  work. 

A  question  of  fact  arose  as  to  the  intention  of  the  prisoner  in  taking 
the  skins  from  the  warehouse.  The  jury  found  that  the  prisoner  did 
not  intend  to  remove  the  skins  from  the  tannery  and  dispose  of  them 
elsewhere,  but  that  his  intention  in  taking  them  was  to  deliver  them  to 
the  foreman  and  to  get  paid  for  them  as  if  they  were  his  own  work  ; 
and  in  this  way  he  intended  the  skins  to  be  restored  to  the  possession 
of  his  masters. 

^  See  Keg.  v.  Phetheon,  9  C.  &  P.  552  ;  Eeg.  v.  Medland,  5  Cox  C.  C.  292.  — En. 


712  EEGINA    V.    HOLLOWAY.  [CHAP.  VIII. 

The  jury,  under  direction  of  the  court,  found  the  prisoner  guilty  ; 
and  a  point  of  law  raised  on  behalf  of  the  prisoner  was  reserved,  and 
is  now  submitted  for  the  consideration  of  the  justices  of  either  Bench 
and  barons  of  the  Exchequer. 

"  The  question  is,  whether,  on  the  finding  of  the  jury,  the  prisoner 
ought  to  have  been  convicted  of  larceny. 

"  Judgment  was  postponed,  and  the  prisoner  was  liberated  on  bail 
taken  for  his  appearance  at  the  next  or  some  subsequent  Court  of 
Quarter  Sessions  to  receive  judgment,  or  some  final  order  of  the 
court." 

Loivndes,  in  support  of  the  conviction.  The  finding  of  the  jury 
shows  that  the  prisoner  committed  larceny. 

Parke,  B.  Is  not  this  case  governed  by  R.  v.  Webb,  1  Moody 
C.  C. 431? 

Loiondes.  The  cases  are  distinguishable.  In  that  ease,  miners 
employed  to  bring  ore  to  the  surface,  and  paid  by  the  owners  accord- 
ing to  the  quantity  produced,  removed  from  the  heaps  of  other  miners  . 
ore  produced  by  them,  and'  added  it  to  their  own  heaps,  the  ore  still 
remaining  in  the  possession  of  the  master ;  and  it  was  held  not  to  be  a 
larceny.  Here  the  skins  were  removed  from  the  place  in  which  they 
had  been  put  by  the  master  for  custody  into  a  place  in  which  they 
were,  in  fact,  in  the  prisoner's  custody.  In  R.  v.  Webb,  the  ore  was 
never  out  of  the  master's  custody  ;  in  this  case,  the  skins  were  dis- 
tinctly out  of  the  master's  custody. 

Coleridge,  J.  In  the  case  of  R.  v.  Webb  there  was  the  interval  in 
which  the  ore  passed  from  one  heap  to  the  other ;  was  it  not  then  out 
of  the  master's  custody? 

Lowndes.     There  was  no  intent  to  injure  the  owner  in  that  case. 

Coleridge,  J.  There  was  the  intent  to  obtain  payment  for  ore 
which  ihe  miner  had  not  dug  from  the  earth. 

Parke,  B.  It  is  essential  that  the  taking  should  be  with  the  intent 
to  deprive  the  owner  of  the  property  in  the  thing  taken  :  the  jury  did 
not  find  that  in  this  case,  but  only  that  the  intention  of  the  prisoner 
was  to  get  paid  for  the  skins,  as  if  they  had  been  his  own  work. 

Lowndes.  It  is  not  necessary  that  there  should  be  the  intention 
wholly  to  deprive  the  owner  of  the  property  ;  it  is  enough  if  the 
chattel  is  taken  for  the  purpose  of  getting  a  benefit  different  from  the 
mere  use  of  it.  In  this  case,  though  there  was  an  intention  to  return 
the  skins,  there  was  not  the  intention  that  the  owner  should  be  put 
into  the  situation  in  which  he  was  before  the  taking ;  for  though  he 
was  to  have  the  skins,  he  was  to  have  them  minus  the  wages. 

Parke,  B.  The  taking  must  be  with  intent  to  acquire  the  entire 
dominion  to  the  taker. 

Lowndes.     The  taking  must  be  treacherous,  —  for  evil  gain. 

Parke,  B.  East's  definition  is,  "  The  wrongful  or  fraudulent  taking 
or  carrying  away  by  any  person  of  the  mere  personal  goods  of  another 
person  anywhere,  with  a  felonious  intent  to  convert  them  to  his  (the 


SECT.  VI.]  KEGINA   V.    HOLLOWAY.  7 13 

taker's)  own  use  and  make  them  his  property,  without  the  consent  of 
the  owner."     2  East  PI.  Cr.  553. 

Loimides.  In  3  Inst.  107,  Lord  Coke  defines  larceny  to  be  "the 
felonious  and  fraudulent  taking  and  carrying  away,  by  any  man  or 
woman,  of  the  mere  personal  goods  of  another,  neither  from  the  person 
nor  by  night  in  the  house  cf  the  owner."  Braeton  and  Fleta  describe 
it  as  "  Contractatio  rei  aliense  fraudulenta,  cum  animo  furaudi,  invito 
illo  domino,  cujus  res  ilia  fuerat."  Braeton,  lib.  iii.  c.  32,  fol.  150; 
Fleta,  lib.  i.  c.  36  ;  Glanville,  lib.  vii.  c.  17  ;  lib.  x.  c.  15  follows  Brae- 
ton. The  "Mirror"  give?  the  word  "  treachereusement ;  "  that  is, 
without  a  boiiajide  claim.  In  4  Blackst.  Com.  232,  it  is  said  that  the 
taking  must  be  "felonious;  that  is,  done  animo  furandi\  or,  as  the 
civil  law  expresses  it.  hiai  causa."  Blackstone,  therefore,  uses  these 
phrases  as  synonymous. 

Lord  Denman,  C.  J.  Suppose  a  man  takes  the  horse  of  another 
with  intent  to  keep  him  for  a  year,  ride  him  through  all  the  counties 
of  England,  and  then  return  him;    is  that  a  larceny? 

Parke,  B.  There  must  be  an  intention  in  the  taker  to  acquire  the 
whole  dominion  over  the  thing,  to  make  it  his  own  ;  to  do  what  he 
likes  with  it. 

Lowndes.     The  facts  in  this  case  show  a  taking  lucri  causa. 

Parke,  B.     The  case  of  R.  v.  Webb  has  decided  otherwise. 

Alderson,  B.  This  is  rather  an  obtaining  money  by  false  pretences 
than  a  larceny. 

Loivndes.  If  this  is  not  a  larceny  it  would  follow  that  if  chattels 
were  taken  for  the  purpose  of  obtaining  money  for  them  by  false 
pretences  from  the  owner,  and  in  that  way  converted  to  the  use  of 
the  taker,  he  would  not  commit  larceny.  If  the  statement  does  not 
sufficiently  show  what  offence  has  been  committed,  the  case  may  be 
restated. 

Lord  Denman,  C.  J.  No.  The  facts  on  which  we  are  to  decide 
must  be  stated  at  once.  This  court  is  not  to  be  used  to  keep  these 
cases  alive. 

Alderson,  B.  This  will  not  prevent  you  from  bringing  an  indict- 
ment for  obtaining  mone}'  under  false  pretences. 

Loivndes.     No  money  was  obtained. 

Alderson,  B.  The  attempt  to  commit  a  misdemeanor  is  a  misde- 
meanor ;  and  if  the  removal  of  the  skins  amounted  to  such  an  attempt, 
the  indictment  may  be  preferred.  The  only  question  here  is,  whether 
the  Recorder  ought  to  have  directed  the  jur}^  to  find  a  verdict  of  not 
guilty. 

Lord  Denman,  C.  J.  If  I  thought  the  question  was  open  after  the 
authorities,  I  must  say  that  a  great  deal  might  be  urged  in  support  of 
the  proposition  that  these  facts  show  a  larceny  to  have  been  com- 
mitted ;  because  the  owner  is  deprived  of  his  property  for  some  time, 
and  the  probability  is  that  the  intent  distinguishing  the  case  from  lar- 
ceny may  be  altered.     The  case  which  I  put,  of  borrowing  a  horse  for 


714  EEGINA   V.    HOLLOW  AY.  [CHAP.  VIII. 

a  year,  without  the  owner's  consent,  witli  intent  to  ride  it  through 
England  and  then  return  it,  sliows  this.  But  if  we  say  that  borrowing 
alone  would  constitute  larceny,  we  are  met  by  similar  cases  the  other 
way.  With  regard  to  the  definition  of  larceny,  we  have  of  late  years 
said  that  there  must  be  an  intention  to  deprive  the  owner  permanently 
of  his  property,  which  was  not  the  intention  in  this  case.  We  are  not 
disposed  to  encourage  nice  distinctions  in  the  criminal  law  ;  yet  it  is  an 
odd  sort  of  excuse  to  say  to  the  owner,  "  I  did  intend  to  cheat  you  in 
fact  and  to  cheat  my  fellow-workmen  afterwards."  This,  however,  is 
not  an  act  which  is  not  punishable  ;  for  if  it  is  not  a  misdemeanor, 
which  at  the  first  sight  it  appears  to  be,  it  is  an  act  done  toward  com- 
mitting that  misdemeanor.  We  must  abide  by  former  decisions,  and 
hold  that  a  conviction  for  larceny  cannot  in  this  case  be  supported. 

Pauke,  B.  I  am  of  the  same  opinion.  We  are  bound  by  the  authori- 
ties to  sa}'  that  this  is  not  larceny.  There  is  no  clear  definition  of  lar- 
ceny applicable  to  every  case  ;  but  the  definitions  that  have  been  given, 
as  explained  by  subsequent  decisions,  are  sufficient  for  this  case.  The 
definition  in  Elast's  "  Pleas  of  the  Crown"  is,  on  the  whole,  the  best; 
but  it  requires  explanation,  for  what  is  the  meaning  of  the  phrase 
"wrongful  and  fraudulent"?  It  probably  means  "without  claim  of 
right."  All  the  cases,  however,  show  that,  if  the  intent  was  not  at  the 
moment  of  taking  to  usurp  the  entire  dominion  over  the  property  and 
make  it  the  taker's  own,  there  was  no  larceny.  If  therefore  a  man 
takes  the  horse  of  another  with  intent  to  ride  it  to  a  distance  and  not 
return  it,  but  quit  possession  of  it,  he  is  not  guilty  of  larceny.  So  in 
R.  V.  Webb,  in  which  the  intent  was  to  get  a  higher  reward  for  work 
from  the  owner  of  the  property.  If  the  intent  must  be  to  usurp  the 
entire  dominion  over  the  property,  and  to  deprive  the  owner  wholly  of 
it,  I  think  that  that  essential  part  of  the  offence  is  not  found  in  this 
case. 

Alderson,  B.     I  cannot  distinguish  this  case  from  R.  v.  Webb. 

Coleridge,  J.,  concurred. 

CoLTMAN,  J.  We  must  not  look  so  much  to  definitions,  which  it  is 
impossible  apriori  so  to  frame  that  they  shall  include  every  case,  as  to 
the  cases  in  which  the  ingredients  that  are  necessary  to  constitute  the 
offence  are  stated.  If  we  look  at  the  cases  which  have  been  decided, 
we  shall  find  that  in  this  case  one  necessary  ingredient  —  the  intent  to 
deprive  entirely  and  permanently  —  is  wanting. 

Convictio7i  reversed} 

^  Ace.  Rex  V.  Webb,  1  Moo.  C.  C.  431 ;    Reg.  v.  Poole,  7  Cox  C.  C.  373.     Contra. 
Fort  V.  State,  82  Ala.  50.  —  Ed. 


SECT.  VI.]  EEGINA   V.   HALL.  715 

REGINA  V.   HALL. 
Crown  Cases  Reserved.      1849. 

[Reported  3  Cox  C.  C.  245.] 

The  following  case  was  reserved  by  the  Recorder  of  Hull :  — 

John  Hall  was  tried  at  the  last  Ei)iphany  Quarter  Sessions  for  the 
borough  of  Hull  on  an  indictment  charging  him  with  stealing  fat  and 
tallow,  the  property  of  John  Atkin. 

John  Atkin,  the  prosecutor,  is  a  tallow-chandler,  and  the  prisoner 
at  the  time  of  the  alleged  offence  was  a  servant  in  his  employment. 
On  the  morning  of  the  6th  of  December  last,  the  prosecutor,  in  conse- 
quence of  something  that  had  occurred  to  excite  his  suspicions,  marked 
a  quantity  of  butcher's  fat,  which  was  deposited  in  a  room  immedi- 
ately above  the  candle-room  in  his  warehouse.  In  the  latter  room  was 
a  pair  of  scales  used  in  weighing  the  fat,  which  the  prosecutor  bought 
for  the  purposes  of  his  trade.  At  noon  the  foreman  and  the  prisoner 
left  the  warehouse  to  go  to  dinner,  when  the  former  locked  the  doors 
and  carried  the  kej^s  to  the  prosecutor.  At  that  time  there  was  no  fat 
in  the  scales.  In  about  ten  minutes  the  prisoner  came  back  and  asked 
for  the  keys,  which  the  prosecutor  let  him  have.  The  prosecutor  watched 
him  into  the  warehouse  and  saw  that  he  took  nothing  in  with  him.  In 
a  short  time  he  returned  the  keys  to  the  prosecutor  and  went  away. 
The  prosecutor  then  went  into  the  candle-room  and  found  that  all  the 
fat  which  he  had  marked  had  been  removed  from  the  upper  room,  and 
after  having  been  put  into  a  bag  had  been  placed  in  the  scales  in  the 
candle-room.  The  prosecutor  then  went  into  the  street  and  waited 
until  a  man  of  the  name  of  Wilson  came  up,  who  was  shortly  followed 
by  the  prisoner.  The  latter  on  being  asked  where  the  fat  came  from 
that  was  in  the  scales,  said  it  belonged  to  a  butcher  of  the  name  of 
Robinson  ;  and  Wilson,  in  the  prisoner's  presence,  stated  that  he  had 
come  to  weigh  the  fat  which  he  had  brought  from  Mr.  Robinson's. 
The  prosecutor  told  Wilso'n  that  he  would  not  pay  him  for  the  fat  until 
he  had  seen  Mr.  Robinson,  and  left  the  warehouse  for  that  purpose. 
Wilson  immediately  ran  away,  and  the  prisoner,  after  offering  to  the 
prosecutor's  wife  if  he  was  foi'given  to  tell  all,  ran  away  too,  and  was 
not  apprehended  until  some  time  afterwards,  at  some  distance  from 
Hull. 

I  told  the  jury  that  if  they  were  satisfied  that  the  prisoner  removed 
the  fat  from  the  upper  room  to  the  candle-room,  and  placed  it  in  the 
scales  with  the  intention  of  selling  it  to  the  prosecutor  as  fat  belong- 
ing to  Mr.  Robinson,  and  with  the  intention  of  appropriating  the 
proceeds  to  his  own  use,  the  offence   amounted  to  larceny. 

The  jury  found  the  prisoner  guilty. 

Dearsley,  for  the  prisoner.  There  was  no  larceny  in  this  case. 
The  offence  was  an  attempt  to  commit  a  statutable  misdemeanor,  and 


716  EEGINA   V.   BEECHAM.  [CHAP.  VIII. 

only  punishable  as  such.  The  case  of  R.  v.  Holloway,  13  Cox  C.  C. 
241,  decides  it.  There  was  an  asportation,  but  no  intention  to  dispose 
of  the  property,  for  it  was  part  of  the  very  scheme  that  the  owner 
should  not  be  deprived  of  his  property  in  the  fat.  There  must  to  con- 
stitute larceny  be  a  taking  with  intention  of  gain  and  of  depriving  the 
owner  of  the  property  forever.  The  last  ingredient  is  wanting  here. 
(He  cited  R.  v.  Morfit,  R.  &  R.  307.) 

Alderson,  B.  If  a  man  talves  my  bank  note  from  me,  and  then 
brings  it  to  me  to  change,  does  he  not  commit  a  larceny? 

Dearslejj.  A  bank  note  is  a  thing  unknown  to  tlae  common  law,  and 
therefore  the  case  put  could  not  be  larceny  at  common  law. 

Lord  Denman,  C.  J.  The  taking  is  admitted.  The  question  is 
whether  there  was  an  intention  to  deprive  the  owner  entirely  of  his 
property  ;  how  could  he  deprive  the  owner  of  it  more  effectually  than 
by  selling  it?  To  whom  he  sells  it  cannot  matter.  The  case  put  of 
the  bank  note  would  be  an  ingenious  larceny,  but  no  case  can  be  more 
e.xtreme  than  this. 

Parke,  B.  In  this  case  there  is  the  intent  to  deprive  the  owner  of 
the  dominion  over  his  property,  for  it  is  put  into  the  hands  of  aa 
intended  vendor,  who  is  to  offer  it  for  sale  to  the  owner,  and  if  the 
owner  will  not  buy  it,  to  take  it  away  again.  The  case  is  distinguish- 
able from  that  of  R.  v.  Holloway  by  the  existence  of  this  intent,  and 
further  by  the  additional  impudence  of  the  fraud. 

Alderson,  B.  I  think  that  he  who  takes  property  from  another 
intends  wholly  to  deprive  him  of  it,  if  he  intend  that  he  shall  get  it 
back  again  under  a  contract  by  which  he  pays  the  full  value  for  it. 

Coleridge,  J.,  and  Coltman,  J.,  concurred. 

Conviction  affirmed.^ 


REGINA  v.  BEECHAM. 

Oxford  Assizes.     1851. 

[Reported  5  Cox  C.  C.  181.] 

The  indictment  in  the  first  count  charged  the  prisoner  with  the 
larceny,  on  the  8th  of  February,  1851,  of  three  railway  tickets  of  the 
value  of  six  pounds  three  shillings,  and  three  pieces  of  pasteboard  of 
the  value  of  one  penny,  the  property  of  the  London  and  North  Western 
Railway  Company. 

In  a  second  count  the  tickets  were  described  as  the  property  of  the 
Btation-master  at  the  Banbury  Road  station. 

It  appeared  in  evidence  that  the  prisoner  was  employed  by  the  rail- 
Way  company  as  a  porter  in  the  goods  department  of  the  Banbury 

1  Ace.  Reg.  V.  Manning,  6  Cox  C.  C.  86.  —  Ed. 


SECT.  VI.]  REGINA    V.    BEECHAM.  717 

Road  station.  On  the  evening  of  the  8th  of  February  he  was  drinking 
beer  at  the  station  with  a  witness  of  the  name  of  Hazell,  who  was  a 
horsekeeper  employed  at  the  station  b}-  an  innkeeper.  The  station- 
clerk  having  about  half-past  eight  o'clock  in  the  afternoon  left  his  office 
to  work  the  electric  telegraph  in  anotlier  compartment  of  the  station, 
the  prisoner  went  into  the  ticket-office,  took  out  three  first-class  tickets 
for  the  journey  from  Banbury  Road  station  to  York,  and  stamped  them 
in  the  machine  for  the  "•  8th  February."  The  last  train  for  York  for 
that  day  had  been  despatched  a  considerable  time,  and  the  prisoner 
tried  to  alter  the  stamping  machine  so  as  to  re-stamp  the  tickets  with 
another  date,  but  failed  in  the  attempt.  He  then  gave  one  of  the  tickets 
to  Hazell,  saying,  "■  There,  you  fool,  when  30U  want  to  go  a  long 
journe}-  30U  need  not  pay  ;  come  here  and  do  this." 

Hazell  mentioned  the  circumstance  on  the  following  daj-  to  the 
station-clerk,  who  went  to  the  prisoner  and  taxed  him  with  the  offence, 
saying,  "You  have  railway  tickets  in  your  pocket."  The  prisoner  at 
first  denied  it,  then  said  if  he  had  them  he  did  not  know  it,  and  eventu- 
ally took  the  two  tickets  from  his  pocket.  He  immediately  afterwards 
went  to  the  station-master  and  told  all  the  matter  to  him ;  the 
latter  said  the  prisoner  should  pay  for  the  tickets  or  be  reported.  A 
few  days  afterwards  he  was  suspended  from  his  employment  and  given 
into  custod}'  on  this  charge.  It  appeared  in  evidence  that  tickets 
stamped  for  one  day  might  be  re-stamped  for  another  day  and  so 
become  available. 

At  the  close  of  the  case  for  the  prosecution, 

Williams,  for  the  prisoner,  submitted  that  the  second  count  of  the  in- 
dictment could  not  be  sustained.  The  station-master  had  no  property 
in  the  tickets,  as  he  was  the  servant  of  the  railwaj'  company,  and 
merely  had  the  custody-  of  the  tickets. 

Fatteson,  J.,  expressed  his  assent  to  that  proposition. 

Williams  then  objected  with  respect  to  the  first  count,  that  as  the 
prisoner  must  have  intended,  supposing  he  took  the  tickets  with  a  viewr 
to  their  use,  that  they  should  be  returned  to  the  company  at  the  end  of 
the  journey,  there  was  no  such  absolute  taking  awaj'  without  an  inten- 
tion of  restoration  as  was  necessary  to  constitute  a  felon}-. 

Fatteson,  J.,  said  his  opinion  was  that  it  was  a  question  for  the  jury 
to  sa}'  whether  the  prisoner  took  the  tickets  with  an  intention  to  con- 
vert them  to  his  own  use  and  defraud  the  compan}'  of  them. 

Williams  then  addressed  the  jur}',  submitting  to  them  that  the  pris- 
oner took  the  tickets  in  a  foolish  incautious  way  as  a  joke,  and  without 
an_y  intention  whatever  to  defraud  the  company. 

The  learned  judge  in  summing  up  told  the  jurj-  that  if  the  prisoner 
took  the  tic^kets  with  intent  to  use  them  for  his  own  purposes,  whether 
to  give  to  friends  or  to  sell  them  or  to  travel  hy  means  of  them, 
it  would  not  be  the  less  larceny  though  they  were  to  be  ultimately 
returned  to  the  company  at  the  end  of  the  journey. 

Yerdict^  not  guilty. 


718  NELSON   V.  KEX.  [CHAP.  VIII. 

NELSON   V.   REX. 
Judicial  Committee  of  the  Privy  Council.     1902. 

[Reported  1902,  A.  C.  250.] 

Appeal  from  a  conviction  by  the  above  Court  (Nov.  19,  1900)  on 
an  indictment  charging  the  appellant  with  unlawfuU}'  and  fraudulently 
taking  and  applying  to  his  own  use  and  benefit  moneys  and  securities 
belonging  to  the  Dumbell's  Banking  Company,  Limited,  of  which  he 
was  a  director,  and  against  the  sentence  of  five  years'  penal  servitude 
passed  upon  such  conviction  b}'  the  said  Court.  That  charge  was 
made  under  s.  218  of  a  Statute  of  the  Isle  of  Man  Legislature,  which 
section  is  as  follows  :  — 

"  Whosoever  being  a  director,  member,  or  public  officer  of  any  body 
corporate  or  public  company  shall  fraudulently  take  or  apply  for  his 
own  use  or  benefit  or  for  an}'  use  or  purposes  other  than  the  use  or 
purposes  of  such  body  corporate  or  public  company  any  of  the  property 
of  such  body  corporate  or  public  company  shall  be  guilty  of  a  misde- 
meanor, and  being  convicted  thereof  shall  be  liable  at  the  discretion  of 
the  Court  to  any  of  the  punishments  which  the  Court  may  award  as 
hereinbefore  last  mentioned." 

The  charge  related  to  sums  drawn  upon  an  account  called  the 
"C.  B.  Nelson  Trust  Account"  between  April  5,  1887,  and  August  7, 
1892,  It  appeared  that  the  cheques  were  openly  drawn  at  the  head 
f)fflce  at  Douglas  upon  this  account.  The  account  was  open  to  inspec- 
tion of  the  bank  officials,  and  was  returned  amongst  other  accounts, 
weekl}'  or  monthly,  to  the  head  offiice  in  Douglas  ;  and  in  the  returns 
the  name  of  the  account  and  its  total  amount  of  indebtedness  were  set 
forth. 

The  overdraft  on  this  account  was  for  the  purpose  of  the  purchase  of 
Allsopp's  Brewery  shares  ;  and  on  each  occasion  of  the  resale  of  these 
shares  the  amount  was  placed  to  the  credit  of  the  account,  and  up  to 
December,  1892,  moneys  were  paid  into  and  out  of  this  account. 

The  appellant  at  the  trial  put  in,  and  proved,  a  statement  shewing 
bis  financial  position  on  December  31,  1893  (more  than  sixteen  months 
after  the  drawing  of  the  last  cheque  set  out  in  the  indictment  upon 
which  he  was  convicted),  by  which  it  appears  that  at  that  time  the 
appellant's  assets  exceeded  his  total  liabilities  by  the  sum  of  19,123Z. 

Thereupon  Deemster  Shee  remarked,  "I  don't  see  the  materiality  of 
all  this.  It  does  not  matter  what  wealth  a  man  has  if  he  illegally  uses 
the  money  of  the  bank."  In  summing  up,  he  said:  "Nelson  made 
a  strong  point :  how  could  he  have  been  fraudulent  when  he  took  these 
overdrafts;  he  was  solvent.  If  the  jury  thought  it  a  satisfactory 
answer  that  it  was  not  fraudulent,  it  was  their  duty  to  say  so,  and  he 
was  entitled  to  a  verdict  of  '  Not  guilty.'  But  that  was  a  dangerous 
doctrine.     Supposing   these  securities   had   been   deposited  with   the 


SECT.  VI. J  NELSON   V.   REX.  719 

bank,  the  argument  would  have  been  stronger.  It  was  a  dangerous 
doctrine  to  allow  one  director  to  do  what  another  director  could  not; 
even  though  he  thought  himself  solvent  though  he  was  not." 

The  jury,  after  being  absent  for  six  hours,  informed  the  Court  they 
were  divided  and  unable  to  come  to  a  verdict.  The  foreman  said, 
"  We  differ  on  what  in  this  case  constitutes  fraud  within  the  meaning 
of  the  law.  Some  of  the  jurors  are  of  opinion  the  defendants  were 
solvent  at  the  time  of  incurring  the  liabilities,  and  therefore  not  guilty 
of  fraud."  Deemster  Shee  thereupon  said,  "Is  that  the  only  difficulty 
you  have?"  and  tlie  foreman  replied,  "I  tiiink  so,  practically." 
Whereupon  tlie  Deemster  gave  the  following  ruling:  — 

Deemster  Shee  :  "  Well,  solvenc}-  alone  would  not  be  sufficient  evi- 
dence they  were  not  guilty.  It  might  be  a  matter  for  30U  to  consider, 
but  in  my  opinion  solvency  alone  would  not  be  evidence  they  were 
not  guilty  of  fraud.  It  is  an  element  for  you  to  consider  whether 
there  was  fraud.  You  have  to  consider  the  whole  of  the  circumstances 
in  the  case  :  the  date  of  the  account ;  the  fact  that  there  were  other 
overdrafts  of  the  defendants ;  the  size  of  the  overdrafts ;  the  way  in 
which  they  were  kept ;  and  the  account  the  prisoners  have  given  of 
how  they  embarked  in  these  transactions.  All  the  circumstances  in 
the  case  have  to  be  taken  into  your  consideration.  To  sa}-,  simply 
because  one  of  the  defendants  was  solvent  that  therefore  he  could  not 
be  guilty  of  fraud,  would  not  be  right.  You  must  consider  about  the 
circumstances ;  and,  considering  the  importance  of  the  case,  I  should 
advise  his  Excellency  to  ask  3'ou  to  retire  to  consider  your  verdict 
again." 

Finally  a  verdict  was  returned,  "  Guilty  on  the  Nelson  Trust  Ac- 
count only,"  with  a  recommendation  to  mere}'. 

The  judgment  of  their  Lordships  was  delivered  by 

Lord  Halsburt,  Lord  Chancellor.  This  was  a  charge  against 
the  defendant  of  having  fraudulently  appropriated  to  his  own  use 
money  of  the  Dumbell's  Banking  Company.  Their  Lordships  are  of 
opinion  that  there  was  no  sufficient  legal  evidence  against  the  defend- 
ant of  that  offence,  and  under  those  circumstances  their  Lordships  will 
recommend  that  this  part  of  the  conviction,  the  only  one  on  which 
leave  to  appeal  has  been  given,  should  be  set  aside. 

It  is  impossibe  not  to  notice  that  the  mode  in  which  the  question  has 
been  propounded  from  time  to  time,  both  by  counsel  and,  one  regrets 
to  saj',  also  hy  the  learned  Deemster  himself,  who  presided,  confuses 
what  is  the  nature  of  the  charge  made  with  the  general  charge  of 
irregularity  in  the  conduct  of  the  proceedings  of  the  bank.  That  is 
not  the  criminal  charge  which  was  preferred  by  the  indictment,  and 
which  ought  to  have  been  found  by  the  jury.  The  charge  was  of 
fraudulent!}'  appropriating  money  of  the  bank. 

The  facts  sufficiently  shew  that  for  a  period  of  some  3'ears,  beginning 
at  all  events  as  early  as  1887,  and  going  down  to  1893,  the  person  con- 
victed was  in  the  habit  of  drawing  partly  upon  his  own  private  account 


720  NELSON   V.   KEX.  [CHAP.  VIII. 

and  parth'  on  an  account  which  was  called  a  trust  account,  but  still  in 
his  name,  and  that  from  time  to  time  that  account  was  operated  upon 
in  the  ordinary  and  natural  wa}'  in  which  the  account  of  a  customer  of 
a  bank  is  treated.  Money  was  paid  in  and  money  was  paid  out,  at 
one  time  a  very  large  overdraft,  and  at  another  time  that  overdraft 
reduced  to  an  amount  of  something  like  300^.  or  400^.,  down  to  the 
period  of  two  or  three  years  after  the  trust  account  had  first  begun. 
Then  it  is  suggested  that  after  a  period  of  six  years  altogether  has 
elapsed  it  is  possible  to  pick  out  some  of  the  earlier  drafts  that  have 
been  made  under  the  circumstances^  and  treat  a  particular  draft  as 
having  been  itself  an  offence  —  that  is  to  say,  a  misappropriation  of 
the  money  of  the  bank  to  the  use  and  purposes  of  the  person  who 
drew  it.  The  real  truth  is  that,  if  what  is  suggested  as  the  offence 
had  been  committed,  every  cheque  was  itself  a  theft.  I  use  the  phrase 
compendiously,  because,  although  it  is  not  stealing  in  the  language  of 
the  statute,  the  elements  of  stealing  must  exist  in  it,  and,  in  order  to 
determine  whether  this  offence  has  been  committed  in  the  sense  which 
the  law  requires  in  order  to  sustain  the  conviction,  one  must  see 
whether  it  is  true  to  sa}'  that  every  one  of  those  cheques  so  drawn,  and 
the  money  obtained  by  reason  thereof,  was  a  theft. 

Their  Lordships  are  of  opinion  that  there  was  no  legal  evidence  of 
an}'  such  proposition.  It  may  have  been  extremely  irregular,  and 
may  have  been  wrong,  and  was  wrong  under  the  circumstances,  of 
this  bank  to  allow  the  account  to  have  been  entered  into  at  all.  The 
board  ought  to  have  been  consulted,  and  the  board  ought  to  have 
given  its  consent  in  writing  that  such  an  account  should  be  entered 
into,  oi',  at  all  events,  that  overdrafts  should  not  have  been  allowed  on 
it;  but  that  each  of  these  transactions  which  is  made  the  subject  of 
indictment  was  practicall}'  a  stealing  of  the  money  obtained  by  the 
cheque  there  appears  to  be  no  evidence  whatever,  and  their  Lordships 
are  unable  to  see  that  the  question  was  ever  properly  before  the  jury 
at  all.  It  was  a  natural  and  proper  inquiry  bj'^  the  jury  which  they 
made  of  the  learned  Deemster,  whether  or  not  they  ought  to  have 
some  guidance  as  to  what  was  a  fraud  within  the  meaning  of  the  law, 
because,  as  they  explained,  they  were  anxious  to  learn.  Some  of  them 
thought  there  could  be  no  fraud  at  the  time,  because  the  person  wa? 
solvent  who  was  drawing  these  cheques,  to  which  inquiry  no  answe 
apparently  was  given  by  the  learned  Deemster  in  the  language  which 
the  jury  required,  but  he  goes  on  to  sa}-  that  it  is  not  conclusive  that 
the  defendant  was  not  guilty  because  he  was  solvent  —  an  entire  inver- 
sion, their  Lordships  regret  to  observe,  of  what  ought  to  have  been 
told  the  jury  at  the  time.  Strictly,  and  as  a  matter  of  verbal  accu- 
racy, indeed  it  is  not  conclusive  that  the  person  was  not  guilty;  but 
the  question  which  the  jurymen  obviously  desired  to  have  answered 
was  whether  or  not,  given  the  circumstances  of  this  case,  the  man 
being  perfectly  solvent  at  the  time  and  having  ample  assets  to  answer 
the  cheque  which  he  was  drawing,  they  ought  to  infer  from  the  nature 


SECT.  VI.]        PEOPLE    EX    KELATIONE   PERKINS    V.   MORSE.  721 

of  the  transaction  that  it  was  a  taking  or  misappropriation  within  the 
meaning  of  the  statute.  Upon  that  it  is  impossible  to  say  the  jury 
received  any  guidance  whatever. 

In  the  result  their  Lordships  are  of  opinion  that  there  may  have 
been  ample  evidence  that  the  account  was  improperly  obtained,  and 
it  may  have  been  in  one  sense  fraudulently  obtained,  but  there  is  no 
evidence  justifying  the  charge  that  this  money  was  appropriated  to  the 
use  of  the  person  who  drew  the  cheque  in  fraud  of  the  right  of  the 
bank  to  have  the  money,  and  therefore  that  the  offence  contemplated 
by  the  statute  was  committed,  or  at  all  events  there  was  no  evidence 
of  its  being  committed  so  as  to  justify  the  verdict  of  "  guilty."  For 
these  reasons  their  Lordships  will  humbly  advise  His  Majesty  that  the 
conviction  of  November  19,  1900,  should  be  set  aside. 

There  will  be  no  order  as  to  costs  against  the  Crown. 


PEOPLE   ex  relatione   PERKINS   v.  MORSE. 
Court  of  Appeals  of  Xew  York.     1907. 

[Reported  187  N.  Y.  410.] 

Appeal  from  an  order  of  the  Appellate  Division  of  the  Supreme 
Court  in  the  first  judicial  department,  entered  May  25,  1906,  which 
reversed  an  order  of  Special  Term  dismissing  a  writ  of  habeas  corpus 
and  directed  the  discharge  of  the  relator  from  custody.^ 

Gray,  J.  ...  If  the  magistrate  issued  the  warrant  of  arrest  without 
sufficient  evidence  in  the  particular  case,  the  process  is  a  nullity.  The 
question,  always,  must  be  whether  the  magistrate  acquired  jurisdiction 
to  cause  an  arrest  of  the  person  and  the  court,  upon  the  habeas  corjms 
proceeding,  will  look  back  of  his  warrant  and  see  if  the  facts  stated  in 
the  depositions  of  the  prosecutor  and  his  witnesses  support  his  warrant. 
(Code  Crim.  Proc.  sec.  149  ;  Church  Hab.  Corp.  sec.  236.)  If  they 
did  not  furnish  reasonable  and  just  ground  for  a  conclusion  that  the 
crime  charged  had  been  committed  and  that  the  defendant  committed 
it,  then  jurisdiction  was  lacking  to  hold  the  prisoner  in  custody  for  any 
time.     (Code  Crim.  Proc.  sec.  150.) 

The  relator  had  the  absolute  right  to  question,  in  this  way,  the  suffi- 
ciency of  the  facts  laid  before  the  magistrate  to  constitute  the  crime  of 
larceny.  That  crime  is  defined  in  section  528  of  the  Penal  Code,  which 
reads,  as  far  as  material,  as  follows  :  "  A  person  who,  with  the  intent 
to  deprive  or  defraud  the  true  owner  of  his  property,  or  of  the  use  and 
benefit  thereof,  or  to  appropriate  the  same  to  the  use  of  the  taker,  or  of 
any  other  person,  .  .  .  having  in  his  possession,  custody,  or  control, 
as  a  bailee,  servant,  attorne}',  agent,  clerk,  trustee,  or  officer  of  any 
person,  association,  or  corporation,  .  .  .  any  money,   property,   evi- 

1  The  detailed  statement  of  facts  is  omitted ;  the  facts  will  be  found  stated  in  the 
opinions.     Part  of  each  opinion  is  omitted.  —  Ed. 


722  PEOPLE    EX   KELATIONE    PERKINS   V.    MORSE.       [CHAP.  VIII. 

deuce  of  debt  or  contract,  article  of  value  of  any  iiatiue,  or  thing  in 
action  or  possession,  appropriates  the  same  to  his  own  use,  or  that  of 
any  person  other  than  the  true  owner  or  person  entitled  to  the  benefit 
thereof,  steals  such  property,  and  is  guilty  of  larceny." 

It  is  apparent  that  what  constitutes  the  crime  of  taking  the  property 
of  another  for  the  use  of  the  taker,  or  of  that  of  any  otlier  person  than 
the  legal  owner,    is  the  intention   with  which   the   act  is  committed. 
Under  the  statute,  the  crime  of  larceny  no  longer  necessitates  a  tres- 
pass ;  but  it  does  need,  as  an  essential  element,  that  the  "  intent  to 
deprive  or  defraud"  the  owner  of  his  property,   or  of  its  use,  shall 
exist.     The  intent,  by  necessary  implication,  as  from  its  place  in  the 
penal  statute,  must  be  felonious  ;  that  is  to  say,  an  intent  without  an 
honest  claim  of  right.     It  is  not  now  essential,   as  it  was  under  the 
Roman  and  early  English  law,  that  the  intention  of  the  taker  shall  he 
to  reap  any  advantage  from  the  taking.     The  statute  makes  the  crime 
to  consist  in  the  intent  to  despoil  the  owner  of  his  property.     That  is 
necessary  to  complete  the  offence,  and  if  a  man,  under  the  honest  im- 
pression that  he  has  a  right  to  the  property,  takes  it,  it  is  not  larceny 
if  there  be  a  colorable  title.     (See  Code  Crim.  Proc.  sec.  548  ;  People 
V.  Grim,  3  N.  Y.  Cr.  Rep.   317;  Bishop's  Crim.   Law,  sees.  297,  851; 
Wharton's  Crim.  Law,  sees.  883,  884.)     The  charge  of  stealing  prop- 
erty is  only  substantiated  by  establishing  the  felonious  intent.    Without 
it  there  is  no  crime  ;  for  it  would  be  a  bare  trespass.     It  is  the  criminal 
mind  and  purpose  going  with  the  act  which  distinguish  the  criminal 
trespass  from  a  mere  civil  injury.     (1  Hale's  P.  C.   509  ;  McCourt  v. 
People,  64  N.  Y.  583.)     Doubtless,  if  the  particular  act  was  specified 
in  the  penal  statute,  an  honest  belief  that  it  was  right,  while  it  would 
purge  the  act  from  immoi-alit}-,  would  not  relieve  it  from  indictability. 
But  when  there  is  no  statute  on  the  subject  and  the  act  is  not  one  which 
concerns  the  State  directly,  because  affecting  the  peace,  order,  comfort, 
or  health  of  the  community,  then  the   wrong  done  is  private   in  its 
character  and  must  be  redressed  by  private  suit.     The  act  of  the  presi- 
dent of  the  insurance  company,  which  the  relator  may  be  regarded  as 
abetting  (Sec.  29,  Penal  Code),  that  is  the  contribution  of  corporate 
funds  for  the  purposes  of  a  political  campaign,  was  not  malum  pro- 
hibitum, or  a  prohibited  wrong  ;    for  it  was  not  until  two  years  later 
that  it  was  made  a  misdemeanor  by  the  law  of  1906.     (L.  1906,  ch. 
239.)    The  legislature  may  make  that  criminal  whicli  was  not  so  before, 
but  we  may  not  reason  back  of  the  enactment  and  predicate  crime  of 
an  act  which  was  lacking  in  criminal  intent.     It  is  of  the  very  nature 
of  crime  that  the  criminal  act  shall  involve  the  violation  of  a  public  law, 
or  a  wrong,   which,  because  grossly  immoral  and  vicious,  affects  the 
public  injuriously. 

If  we  turn  then  to  a  consideration  of  the  facts,  upon  which  the  mag- 
istrate ordered  the  relator  to  be  arrested,  it  is  impossible,  reasonably 
speaking,  to  find  that  criminal  element  which  the  statute  makes  a  neces- 
sary one,  the  intent  of  the  accused  to  steal. 


SECT.   VI.]        PEOPLE    EX    KELATIONE    PERKINS    V.    MORSE,  723 

When  summed  up  the  evidence  amounts  to  this  :  that  the  president  of 
the  eompan}-,  in  whom  was  vested,  and  who  had  for  years  been  exercising, 
the  power  to  make  disbursements  of  the  corporate  funds  upon  his  sole 
authority,  hud  agreed  that  the  insurance  company  would  contribute  to 
the  presidential  cami)aign  fund  of  the  Republican  national  committee 
up  to  the  amount  of  S50,000  and  tiuxt,  to  protect  the  company  against 
other  demands  for  political  purposes,  he  requested  the  relator,  one  of 
the  company's  trustees,  to  personally  carr}'  out  the  agreement  by  ad- 
vancing the  moneys.  The  relator  acquiesced  in  the  president's  request, 
advanced  the  money,  and,  subsequently,  the  president  brought  up  the 
subject  of  his  reimbursement  informall}-  before  a  full  attendance  of  the 
members  of  the  finance  committee  of  the  company.  The  president's 
purpose  was  not  that  the  finance  coujuiittee  should  take  official  action 
in  tlie  matter,  but  that  the  trustees  sliould  be  informed  of  what  he  had 
done,  and  that  he  might  have  their  opinions  upon  the  matter.  It  was 
the  general  opinion  tliat  the  president  should  cause  the  relator  to  be 
reimbursed  for  his  advances  out  of  the  corporate  funds.  The  facts 
stated  by  the  witnesses  showed  that  what  was  brought  before  this  body 
of  the  company's  trustees  was  the  claim,  or  right,  of  Mr.  Perkins  to  be 
repaid  the  moneys  whicli  he  had  paid  out  b}'  the  procurement  of  the 
president,  in  order  that  the  latter's  agreement  on  behalf  of  the  company 
might  be  carried  out,  and  that  the  president,  exercising  the  executive 
power,  with  which  he  appears  to  have  been  clothed,  directed  the 
treasurer  of  the  company'  to  draw  the  check  for  the  amount  of  the 
relator's  claim.  Furthermore,  the  prosecution  in  making  use  before 
the  magistrate  of  the  relator's  letter  to  the  district  attorney'  as  an  admis- 
sion of  the  fa(rts  of  the  transaction  complained  of,  not  only  made  the 
fact  clear  that  the  moneys  were  paid  out  to  satisfy  the  relator's  claim, 
but,  also,  caused  it  to  appear,  affirmatively,  that  the  relator  had  acted 
in  the  honest  belief  that  he  was  benefiting  the  company  and  had  derived 
no  personal  advantage.  The  magistrate  was  not  bound  to  accept  the 
letter  as  establishing  the  innocence  of  the  accused,  but  as  a  part  of 
the  evidence  used  to  make  out  the  charge,  he  had  his  statements  explain- 
ing the  transaction  and  stating  his  honest  motives.  It  was  equivalent 
to  his  examination. 

It  is  unquestionabh'  true  that  the  purpose  for  which  the  moneys  of 
thecompan}'  were  promised  was  foreign  to  the  chartered  purposes  of  the 
corporation  ;  but  that  fact  does  not  make  the  payment  a  criminal  act. 
The  act  not  being  malum  proIiibitN))/,  nor  malum  in  se,  the  innocent 
motive  of  indirectly  promoting  the  corporate  afl!'airs,  through  the  sup- 
posed advantage  of  the  continuance  in  power  of  the  Republican  admin- 
istration, purged  the  act  of  immoralit}',  and  it  lacked  the  criminal  intent. 
The  company  had  not  the  right,  under  the  law  of  its  existence,  to  agree 
to  make  contributions  for  political  campaigns  any  more  than  to  agree  to 
do  other  things  foreign  to  its  charter ;  but  it  had  capacity*  to  make 
agreements,  if  not  prohibited  or  inherently  wicked.  Its  act  would 
afllect  the  interests  of  those  concerned  with  the  conduct  of  the  corporate 


724  PEOPLE    EX    RELATIONE    PERKINS   V.   MORSE.       [CHAP.  VIII. 

business  and  effect  a  private  wrong ;  but  it  would  not  be  a  public 
offence,  or  illegal,  in  the  sense  of  violating  any  public  interest.  (Bis- 
sell  V.  M.  S.  &  N.  I.  R.  R.  Co.,  22  N.  Y.  258  ;  'Holmes  v.  Willard,  125 
ib.  75  ;  Moss  v.  Cohen,  158  ib.  240.)  If  making  the  agreement  to 
contribute  from  the  corporate  funds  was  an  illegal  act,  it  was  because 
of  the  limitations  upon  the  corporate  powers  and  not  because  of  con- 
siderations of  the  disadvantage  to  the  company  of  the  act.  There  are 
a  great  many  things  which  those  intrusted  with  the  management  of 
corporate  properties  are  known  to  do  and  which  tiiey  ought  not  to  do, 
whatever  th%ir  good  motives,  not  because  some  statute  forbids,  but 
because  they  are  not  within  the  scope  of  the  chartered  powers.  Their 
own  sense  of  rectitude  and  of  what  is  due  to  those  who  trust  them 
should  admonish  them  of  the  wrongful  nature  of  their  conduct.  It  has 
been  well  observed  that  the  ultimate  welfare  of  the  citizen  demands 
that  he  shall  conform  his  conduct  to  the  moral  law,  and  it  concerns  him 
that  every  one  else  should  conform  to  it.  A  moral  obligation  should  be 
none  the  less  authoritative  in  the  conduct  of  life  that  it  is  binding  only 
upon  the  conscience  of  the  person  as  a  duty,  and  is  imperfect  in  law 
from  the  absence  of  legal  sanction.  Courts,  however,  may  not  sit  to 
judge  the  conduct  of  a  defendant  by  an}'  moral  code  or  rules  of  ethics. 
Their  sphere  is  to  ascertain  if  the  facts  shown  establish  the  crime 
charged  against  him.  In  the  facts  stated  in  these  depositions,  I  find 
none  upon  which  criminality  can  be  predicated.  The  essential  element 
of  the  "intent  to  deprive  and  defraud"  is  nowhere  to  be  found,  and 
there  is  no  just  basis  for  the  inference.  There  was  no  concealment 
about  the  transaction,  and  knowledge  of  it  was  conveyed  to  the  other 
trustees.  Tliat  the  relator  may  have  made  a  mistake  of  law,  which  will 
not  relieve  him  from  liability  in  a  civil  action,  may  be  true,  and  he 
expressly  disclaimed  in  his  letter  any  intention  to  dispute  such  a 
liability  ;  but  this  was  a  case  where  the  intent,  or  good  faith,  was  in 
issue  and  then  knowledge  of  the  law  is  immaterial.  (Knowles  v.  City 
of  N.  Y.,  176  N.  Y.  at  p.  439  ;  Goodspeed  v.  Ithaca  St.  Ry.  C,  184 
ib.  at  p.  354.)  The  relator  came  to  the  aid  of  the  president  of  the  com- 
pany who,  as  such,  had  agreed  to  contribute  moneys  to  the  campaign 
fund,  and  advanced  the  moneys  temporarily.  Having  done  so,  for  no 
other  reason  than  for  the  supposed  advantage  of  the  company,  his 
claim  to  be  reimbursed  from  the  treasury  of  the  company  is  openly 
presented  and  it  is  paid.  But  within  the  spirit,  if  not  the  letter,  of 
section  548  of  tlie  Penal  Code,  that  was  not  larceny.  The  section  pro- 
vides that  "  upon  an  indictment  for  larceny  it  is  a  suflftcient  defence 
that  the  property  was  appropriated  openly  and  avowedl}',  under  a  claim 
of  title  preferred  in  good  faith,  even  thougli  such  claim  is  untenable." 
This  section  is  an  expression  of  the  emphasis  which  the  statute  la3's 
upon  the  intent  with  which  the  property  of  another  is  taken.  It  is  a 
qualification  of  the  provisions  of  section  528  of  the  Penal  Code,  defining 
what  shall  constitute  the  crime  of  larceny.  It  is  of  considerable  sig- 
nificance, as  illustrating  the  legislative  understanding,  that  when,  in 


SECT.  VI.]         PEOPLE   EX   KELATIONE    PERKINS   V.    MOKSE.  725 

1906,  the  legislature  dealt  with  the  question  specifically  the  offence  was 
declared  to  be  a  misdemeanor,  not  a  larceny. 

The  question  in  this  case  was  whether  the  facts  evidenced  the  com- 
mission of  a  crime,  and  that  was  a  question  of  law,  which  went  to  the 
jurisdiction  of  the  magistrate.  The}-  showed  that  the  design  to  injure, 
the  motive  to  despoil  tlie  company,  the  wrongful  purpose,  were  all  lack- 
ing in  the  information  whicli  was  laid  before  the  magistrate,  and  upon 
which  the  warrant  issued.  This  being  so,  the  act  of  the  magistrate  was 
wholly  without  jurisdiction,  and  the  warrant  and  all  proceedings  under 
it  were  absolutely  void.     (Hewitts.  Newberger,  141  N.  Y.*538,  543). 

For  these  reasons  I  advise  the  affirmance  of  the  order  appealed  from. 

HiscocK,  J.  I  concur  with  Judge  Gray  in  the  affirmance  of  the 
order  appealed  from. 

Stripped  of  an}'  collateral  and  immaterial  considerations,  such  as 
that  of  the  consequences  which  ma}-  result  to  the  magistrate  issuing  a 
warrant  without  any  legal  basis  therefor,  the  naked  question  is  whether 
an}'  evidence  was  presented  to  such  magistrate  which  showed  reason- 
able ground  for  believing  that  the  defendant  had  committed  the  crime 
of  larceny.  Unquestionably  if  there  was  no  evidence  justifying  the 
inference  of  such  guilt,  the  magistrate  was  without  jurisdiction  and  the 
relator  should  be  discharged. 

This  court  seems  to  be  wholly  or  practically  unanimous  in  the  opin- 
ion that  the  evidence  presented  to  the  magistrate  would  not  be  sufficient 
to  sustain  a  conviction  of  the  defendant  for  the  alleged  crime,  and  that 
he  should  be  discharged  if  convicted  thereon.  The  nature  of  this 
case,  the  attention  which  it  has  received,  and  the  facts  and  circum- 
stances disclosed  render  not  at  all  violent  the  presumption  that  the 
district  attorney  has  now  presented  all  the  evidence  within  his  reach, 
and,  therefore,  it  is  quite  probable  that  the  really  practical  question 
involved  is  whether  the  relator  shall  be  discharged  at  the  present  or  at 
a  subsequent  stage  of  the  proceedings.  But  however  this  may  be,  it 
will  be  conceded,  as  is  argued  in  behalf  of  the  appellants,  that  if  even 
a  slight  degree  of  evidence  of  the  relator's  guilt  was  produced  —  "  some- 
thing upon  which  the  judicial  mind  was  called  upon  to  act  in  determin- 
ing the  question  of  probable  cause,"  the  magistrate  had  jurisdiction, 
the  warrant  was  valid  and  the  order  appealed  from  should  be  reversed. 

We  are  all  agreed  upon  certain  fundamental  principles  pertaining  to 
this  case.  The  contribution  by  the  president  of  the  New  York  Life 
Insurance  Company  from  its  funds  of  $50,000  to  a  political  campaign 
committee,  even  in  the  absence  of  any  statutory  prohibition,  was  abso- 
lutely beyond  the  purposes  for  which  that  corporation  existed,  and  was 
wholly  unjustifiable  and  illegal.  And  while  the  contribution  was  sug- 
gested and  made  by  the  authority  and  direction  of  the  president  of  the 
company  rather  than  by  the  relator,  still  the  latter  was  so  a  party  to 
the  execution  of  the  act  that  he  must  be  regarded  as  having  aided  and 
abetted  it,  and,  therefore,  is  criminally  responsible  if  the  crime  was 
committed. 


726  PEOPLE    EX    RELATIONE    PERKINS   V.   MORSE.       [CHAP.  VIII. 

Further  than  this,  the  assumption  will  be  made  without  critical 
analysis  of  its  correctness  in  all  respects,  that  because  the  relator 
understood  when  he  advanced  his  own  funds  to  Mr.  Bliss  that  the  same 
would  be  repaid  to  him  with  moneys  of  the  corporation,  he  was  from 
the  beginning  a  part}'  to  the  plan  to  appropriate  such  corporate  funds 
to  an  unauthorized  purpose,  and  that,  therefore,  when  payment  was 
made  to  him  he  did  not  occupy  the  position  of  a  bona  fide  though  mis- 
taken claimant,  and  does  not  come  within  those  provisions  of  section 
548  of  the  Criminal  Code  which  provide  that  it  is  a  defence  to  an  indict- 
ment for  larceny  "  that  the  property  was  appropriated  openly  and 
avowedly  under  a  claim  of  title  preferred  in  good  faith,  even  though 
such  claim  is  untenable." 

But,  confessedly,  these  facts  and  considerations  alone  are  insuflacient 
tojustify  the  charge  which  has  been  laid  against  the  relator.  At  the 
time  of  his  arrest  there  was  no  statute  making  the  contribution  of  cor- 
porate funds  to  political  purposes  of  itself  a  crime,  and,  therefore,  there 
must  be  some  evidence  that  the  relator  in  doing  what  he  did  was 
actuated  b}'  a  felonious,  criminal  intent.  It  is  agreed  upon  all  sides 
that  the  crime  of  larceny  may  not  be  committed  unintentionall\-,  uncon- 
sciously or  by  mistake,  but  that  in  order  to  accomplish  it  the  perpe- 
trator must  have  the  intent  referred  to.  It  ma}'  be  difficult  at  all  times 
exactl}'  and  satisfactoril}'  to  define  this  intent,  but  the  requirement  for 
it  as  applicable  to  this  case  means  that  when  the  relator  took  part  in 
the  appropriation  of  the  moneys  in  question,  he  must  have  had  in  some 
degree  that  same  conscious,  unlawful,  and  wicked  purpose  to  disregard 
and  violate  the  property  rights  of  another  which  the  ordinary  burglar 
has  when  he  breaks  into  a  house  at  night  with  the  preconceived  design 
of  stealing  the  property  of  its  inmates.  There  is,  as  there  ought  to  be 
in  the  absence  of  statutor}'  enactment,  a  long  distance  between  the  act 
which  is  unauthorized  and  illegal,  and  which  subjects  the  trespasser  to 
civil  liability,  and  the  one  which  is  really  wicked  and  criminal  and 
which  subjects  the  offender  to  imprisonment.  It  is  on  this  point  of 
criminal  intent  that  I  think  the  district  attorney  has  failed  to  furnish 
any  evidencr  whatever  on  which  the  magistrate  might  act,  although  the 
burden  affirmatively  rested  upon  him  so  to  do. 

At  the  outset  it  must  be  borne  in  mind  that  some  of  the  circumstances 
which  surround  this  charge  are  merely  accidental  and  superficial,  and 
not  at  all  decisive.  The  fact  that  this  contribution  was  made  by  the 
officers  of  one  of  those  corporations  whose  management  recently  has 
been  subjected  to  grave  criticism,  and  even  that  it  was  made  for  a  pur- 
pose properly  subjected  to  condemnation  and  now  absolutely  prohibited, 
are  of  no  legal  significance.  However  public  opinion  or  ethics  might 
distinguish  them,  the  legal  principles  which  control  the  consideration 
of  this  case  are  the  same  which  would  be  applicable  if  the  president  of 
a  manufacturing  corporation  had  contributed  from  its  funds  toward  the 
erection  of  a  church  supposed  to  be  for  the  benefit  of  its  employees,  or 
the  officers  of  a  railroad  company  had  contributed  its  funds  or  the  use 


SECT.  VI.]        PEOPLE   EX  RELATIONE   PERKINS   V,   MORSE.  727 

of  its  property-  and  transportation  facilities  for  the  temporary  relief  of 
the  sufferers  from  some  sudden  and  great  ealarait}-.  We  probably 
should  be  compelled  to  say  in  each  case  ihat  the  contribution  was 
beyond  the  purposes  of  the  corporation  and  unauthorized  and  illegal, 
and  the  officers  making  the  same  civilly  liable,  but  it  certainly  would  be 
a  matter  of  grave  import  to  hold,  in  the  absence  of  something  else, 
that  the}'  might  be  prosecuted  for  stealing. 

It,  therefore,  seems  to  me  that  we  are  justified  in  scrutinizing  with 
care  the  depositions  presented  to  the  magistrate  for  the  purpose  of  ascer- 
taining whether  they  do  in  fact  disclose  any  intent  to  commit  a  crime. 

These  facts  are  all  established  and  must  be  accepted  by  the  prosecu- 
tion as  true,  and  there  is  wanting  every  one  of  those  circumstances  of 
personal  gain,  furtive  secrecy  in  the  commission  of  the  act  and  of  con- 
cealment after  commission  which,  as  essential  elements,  ordinarily 
attend  the  crime  of  larcen}-,  and  if  there  is  any  evidence  here  of  a 
criminal  intent,  it  is  found  simply  and  solely  in  the  fact  that  the  officers 
of  the  corporation  have  contributed  some  of  its  funds  to  an  unauthor- 
ized purpose.  As  already  indicated  it  does  not  seem  to  me  that  this 
fact  is  sufficient  to  sustain  the  burden  thus  cast  upon  it. 

In  McCourt  v.  People  (64  N.  Y.  583)  the  plaintiff  in  error  stopped  at 
a  house  and  asked  the  daughter  of  the  owner  for  a  drink  of  cider,  offer- 
ing to  pa}'  for  it.  She  refused  to  let  him  have  it,  and  he  thereupon 
opened  the  cellar  door,  and,  although  forbidden  to  do  so  by  her,  went  in 
and  drew  some  cider.  He  was  indicted  for  burglar}'  and  larceny,  and 
it  was  held  that  the  trial  court  committed  error  in  refusing  to  direct  his 
acquittal.  It  was  said  :  "  Every  taking  by  one  person  of  the  personal 
property  of  another  without  his  consent  is  not  larceny ;  and  this, 
although  it  was  taken  without  right  or  claim  of  right,  and  for  the  pur- 
pose of  appropriating  it  to  the  use  of  the  taker.  Superadded  to  this, 
there  must  have  been  a  felonious  intent,  for  without  it  there  was  no 
crime.  It  would,  in  the  absence  of  such  an  intent,  be  a  bare  trespass, 
which,  however  aggravated,  would  not  be  a  crime.  It  is  the  criminal 
mind  and  purpose  going  with  the  act  which  distinguishes  a  criminal 
trespass  from  a  mere  civil  injury."  And  then  further,  as  applicable 
to  the  particular  circumstances  of  that  case,  "There  was  not  only 
an  absence  of  the  usual  indicia  of  a  felonious  taking,  but  all  of  the 
circumstances  proved  are  consistent  with  the  view  that  the  transaction 
was  a  trespass  merely.  To  find  this  transaction  a  larceny  it  is  neces- 
sary to  override  the  ordinary  presumption  of  innocence  and  to  reject  a 
construction  of  the  prisoner's  conduct,  which  accounts  for  all  the 
circumstances  proved  without  imputing  crime,  and  to  impute  a  criminal 
intention  in  the  absence  of  the  ear  marks  which  ordinarily  attend  and 
characterize  it." 

It  is  true  that  this  was  said  with  reference  to  the  evidence  produced 
upon  a  trial,  but  a  decision  denying  as  matter  of  law  to  given  facts  the 
requisite  probative  force  must  be  applicable  at  any  other  stage  where 
there  is  need  for  such  proof. 


728  PEOPLE    EX    RELATIONE    PERKINS   V.   MORSE.       [CHAP.  VIII. 

CuLLEN,  C.  J.  ...  Something  is  also  said  in  the  opinion  below  of 
the  beneficent  character  of  the  purpose  to  which  the  raone}'  was  appro- 
priated. Of  that  we  can  hardly  take  judicial  notice.  Probably  at  all 
times  it  would  be  regarded  as  beneficent  in  Vermont  and  maleficent 
in  Georgia,  while  in  New  York  its  character  would  vary  from  year  to 
3'ear.  The  meritorious  character  of  the  object  to  which  the  money  was 
appropriated  has  no  bearing  on  the  question  of  larceny.  The  gist  of 
that  offence  is  not  the  application  of  money  to  a  bad  purpose,  but 
taking  money  that  does  not  belong  to  the  taker  to  appropriate  to  an 
object  good  or  bad.  It  is  the  fraudulent  deprivation  of  an  owner  of  his 
property  that  constitutes  larcen}'.  It  is  a  crime  to  steal,  even  though 
with  the  intent  to  give  away  in  charit}'  and  relieve  distress.  (Regina 
V.  White,  9  C.  «&  P.  434.)  I  do  not  assert  that  it  is  immaterial  which 
party  is  in  control  of  the  government  of  the  nation,  and  that  the  subject 
is  a  matter  of  indifference  to  the  citizen.  If  this  were  so,  the  profession 
of  political  faith  would  be  mere  hypocrisy.  If  the  citizen,  with  his 
own  means,  contributes  to  legitimate  political  expenses  to  secure  the 
success  of  the  party  which  he  deems  will  most  inure  to  the  welfare  of 
the  nation,  his  action  is  laudable,  and  even  if  the  inducement  be  the 
belief  that  the  success  of  that  part}'  will  inure  to  the  advancement  of 
his  personal  interest,  as  distinguished  from  that  of  the  country  at  large, 
it  may  be  justifiable  ;  but  to  apply  the  mone\'  of  another  without  his 
consent  to  such  an  object  is  neither  laudable  nor  justifiable,  but  dis- 
honest. The  money  given  to  Bliss  belonged  neither  to  the  president 
nor  to  tlie  relator,  but  was  simply  in  their  custody.  Its  legal  owner 
was  the  artificial  being,  the  corporation  ;  its  beneficial  owners  were  the 
policy-holders.  With  the  immense  business  carried  on  by  the  corpora- 
tion, policies  issued  in  every  part  of  the  country  and  to  persons  of  every 
political  party,  both  the  relator  and  the  president  must  have  well  known 
that  the  universal  assent  of  the  policy-holders,  the  only  thing  which  could 
have  justified,  even  morally  (not  legally),  the  payment  to  Bliss,  could 
never  be  obtained  and  that  at  all  times  a  substantial  minority  would  be 
opposed  to  such  payment.  But  though  there  was  an  illegal  misappro- 
priation of  the  corporate  funds  by  the  relator,  this  does  not  necessarily 
prove  that  he  was  guilty  of  larceny.  It  may  have  been  simply  a  tres- 
pass for  which  he  is  only  civilly  liable.  I  agree  with  Judge  Gray  that 
to  constitute  larceny  there  must  be  what  is  termed  a  felonious  intent, 
but  we  do  not  make  progress  towards  the  determination  of  the  question 
before  us  unless  we  ascertain  what  is  a  felonious  intent.  The  question 
has  given  rise  to  much  discussion  in  text  books  and  in  judicial  opinions. 
Whether  "intent"  is  the  proper  term  to  employ  may  be  doubted. 
Though  a  man  ma}'  commit  many  statutory  offences  unwittingly,  no 
one  can  become  a  thief  or  an  embezzler  accidentally  or  b}^  mistake. 
To  constitute  the  offence  there  must  be  in  the  perpetrator  tlie  con- 
sciousness of  the  dishonesty  of  the  act.  This,  however,  as  frequently 
turns  on  the  knowledge  or  belief  of  the  party  as  to  his  authority  as  on 
his  intent  regarding  the  disposition  of  tlie  propertv.     It  is  not  neces- 


SECT.  VI.]        PEOPLE   EX   RELATIONE    PERKINS    V.    MORSE.  729 

sary  either  at  common  law  or  under  the  statute  that  the  intent  should 
be  the  profit  of  the  taker,  for  as  alread3'  said,  it  is  theft  to  take  prop- 
erty to  give  away  as  well  as  to  keep  for  oneself.  In  the  present  case 
no  one  will  doubt  that  had  a  clerk  taken  from  tlie  company's  till  a  sum 
of  money  to  give  to  the  Republican  club  of  his  ward,  it  would  have 
been  larceny'.  Whatever  distinction  there  may  be  between  the  hypo- 
thetical case  and  that  of  this  relator  does  not  lie  in  the  object  for  which 
the  moneys  were  appropriated,  for  that  in  each  case  would  be  the  same, 
but  in  the  difference  between  the  authority  over  the  corporate  funds 
possessed  b3-  the  mere  clerk  and  by  the  president  and  vice-president. 
The  clerk,  of  course,  would  know  that  he  had  no  authority  to  so  divert 
the  corporate  funds ;  the  president  and  the  relator  might,  though  the}' 
should  have  known  to  the  contrar}-,  possibly  have  entertained  a  dif- 
ferent view  on  the  subject.  This  brings  us  to  the  real  and,  to  my 
mind,  the  onl}-  question  in  this  case.  As  has  been  alreadv  said,  the 
relator  and  the  president  of  the  company,  without  the  authority  of  the 
corporation  and  knowing  that  all  the  beneficial  owners  would  never 
assent  to  the  act,  took  the  monejs  of  tlie  compan}'  without  considera' 
tion  and  appropriated  them  to  the  exclusive  use  of  a  third  party.  The 
relator  must  be  presumed  to  have  known  the  law  and  to  have  intended 
the  natural  consequences  of  his  acts,  wliich  was  to  deprive  the  company 
of  the  mone}'.  If  he  knew  tlie  illegality  of  his  act  and  his  intention  was 
solely  to  benefit  either  Mr.  Bliss  personally  or  the  political  organization 
which  he  represented,  then  he  was  guilty  of  larcen}-.  If,  however,  as 
asserted  in  his  statements  to  the  district  attornej',  he  believed  that  the 
expenditure  would  be  for  the  benefit  of  the  compau}'  and  that  the  presi- 
dent had  the  power  to  make  the  same,  then,  however  mistaken  on  the 
subject,  he  was  not  guilty.  This  was  necessarily  and  properly  a  ques- 
tion of  fact  to  be  determined  hy  the  magistrate,  not  one  of  law.  Though 
the  prosecution  put  in  evidence  before  the  magistrate  the  written  state- 
ment of  the  relator,  the  magistrate  was  at  liberty  to  believe  it  or  to 
reject  it  in  whole  or  in  part.  (People  v.  Van  Zile,  143  N.  Y.  368; 
Becker  v.  Koch,  104  id.  394 ;  President,  etc.,  Manhattan  Co.  v.  Phil 
lips,  109  id.  383.)  The  indirect  method  in  which  the  paj'raent  to  Blisi 
was  made  and  the  fact  concealed  by  having  the  money  in  the  first  in- 
stance advanced  b}'  the  relator  instead  of  by  the  company,  and  the 
method  in  which  the  relator  was  reimbursed  b}'  a  check,  not  to  him 
personally,  but  to  the  order  of  J.  P.  Morgan  &  Company,  a  banking 
firm  with  which  the  corporation  may  have  large  legitimate  dealings, 
casts  suspicion  on  the  good  faith  of  the  relator,  and  might  be  considered 
by  the  magistrate  as  militating  against  him.  The  explanation  of  this 
course  offered  by  the  relator,  that  it  was  to  relieve  the  president  from 
solicitations  from  other  political  parties,  might  also  be  discredited.  It 
is  difficult  to  imagine  how  the  representatives  of  other  parties  would 
have  access  to  the  company's  books  ;  nor  would  the  scheme  of  pay- 
ment enable  the  officers  of  the  company  when  solicited  to  say  that  the 
company  had  made  no  contributions  to  other  parties,  because  such  an 


730  PEOPLE    EX    RELATIONE    PERKINS   V.   MORSE.       [CHAP.  VIIL 

answer  would  be  as  essentially  a  falsehood  as  if  the  money  had  been 
paid  by  the  company  in  the  first  instance.  The  concealment  of  the 
payment  as  described  would  warrant  the  magistrate  in  finding  that  the 
parties  were  conscious  of  wrongdoing  in  making  it  and  feared  exposure. 
Tlie  relator  asserts  that  he  was  ignorant  of  the  character  of  the  entries 
made  in  the  company's  books,  and  there  is  no  proof  to  the  contrary  of 
this  statement.  But  he  must  have  known  that  the  cheque  to  pay  him 
was  drawn,  not  to  himself,  but  to  Morgan  &  Company.  On  the  other 
hand,  there  is,  doubtless,  to  be  considered  in  the  relator's  favor  the  fact 
that  he  made  no  pecuniar}'  profit  by  the  transaction,  and  that  he  after- 
wards openly  admitted  his  participation  in  it.  All  this,  however,  merely 
raised  a  question  of  fact  to  be  passed  on  by  the  magistrate,  with  whose 
determination  other  courts  cannot  interfere  in  this  proceeding.  .  .  .^ 

O'Brien  and  Edward  T.  Bartlett,  JJ.  ,  concur  with  Gray  and  His- 
COCK,  JJ. ;  Chase,  J.,  concurs  with  Cdllen,  Ch.  J.,  and  Werner,  J. 

Order  affirmed. 

1  Wekner,  J.,  delivered  a  dissenting  opinion.  —  Ed. 


SECT  VII.  ]  REX  V.   FRANCIS.  731 

SECTION  VII. 

Aggravated  Larceny. 
(a)  Robbery  and  Larceny  from  the  Person. 

REX   V.   FRANCIS. 
King's  Bench.  1735. 

[Reported  2  Strange,  1015.] 

The  defendants  were  indicted  at  the  Assizes  in  Somersetshire,  for 
that  the}-  feloniously  made  an  assault  on  Samuel  Cox  in  the  king's 
highwa\-,  and  put  him  in  fear,  and  £9  in  money  from  the  person  of 
Cox  did  talve,  steal,  and  carry  away.  Upon  not  guilty  pleaded  by  all 
the  defendants,  the  jury  find  this  special  verdict  :  — 

That  Samuel  Cox  travelling  on  horseback  on  the  king's  highway  to 
Somerton  Fair,  on  a  place  called  King's  Down  Hill  in  the  county  of 
Somerset,  saw  all  the  prisoners  in  company-  together,  one  of  whom  was 
then  lying  on  the  ground  ;  that  Cox  passed  by  them,  and  one  of  them 
(but  which  the  jury  do  not  know)  called  to  Cox,  and  desired  him  to 
change  half  a  crown,  that  they  might  give  something  to  a  poor  Scotchman 
then  Ijing  on  the  ground,  who  was  one  of  the  prisoners.  Cox  came 
back,  and  putting  his  hand  in  his  pocket  to  pull  out  his  moncN'  in  order 
to  give  them  change  as  they  desired,  he  pulled  out  four  moidores  and  a 
Portugal  piece,  value  £3,  12  s.,  and  having  the  pieces  of  gold  in  his 
hand,  John  Francis,  one  of  the  prisoners,  gently  struck  Cox's  hand,  in 
wliich  he  held  the  gold,  by  means  whereof  the  gold  fell  on  the  ground  ; 
that  thereupon  Cox  got  off  from  his  horse,  and  said  to  the  prisoners 
that  he  would  not  lose  his  money  so  ;  and  the  said  Cox  then  and  there 
offering  to  take  up  the  pieces  of  gold,  which  were  then  upon  the  ground, 
and  in  Cox's  presence  ;  the  prisoners  then  and  there  swore  that  if  he 
touched  the  pieces  of  gold  they  would  knock  his  brains  out ;  whereby 
he  was  then  and  there  put  in  bodily  fear  of  his  life,  and  then  and 
there  desisted  from  taking  up  the  pieces  of  gold.  That  the  prisoners 
then  and  there  immediately  took  up  the  gold,  and  got  on  their  horses, 
and  rode  off  with  the  gold :  that  Cox  immediately  thereupon  pur- 
sued them,  and  rode  after  them  for  about  half  a  mile  ;  and  then  the 
prisoners  struck  him  and  his  horse,  and  swore  that  if  he  pursued  them 
any  farther  they  would  kill  him  ;  by  reason  of  which  menace  he  was 
afraid  to  continue  his  pursuit  any  farther ;  but  whether  upon  the  whole 
matter  the  prisoners  are  guilty  of  the  felony  and  robbery  charged  on 
them  the  jury  doubt,  and  pray  the  advice  of  the  court,     ^t  si,  &c} 

1  Upon  a  second  argument  it  was  determined  that  the  special  verdict  did  not  state 
•with  sufficient  certainty  whether  the  talcing  wasin  the  presence  of  the  prosecutor, —  Ed. 


732  KEGINA   V.   SELWAY.  [CHAP.  VIII. 

This  special  verdict  and  tlie  prisoners  were  renaoved  into  the  King's 
Bench,  where  it  was  twice  argued  at  the  bar.  And  upon  the  first  argu- 
ment the  only  question  was,  wliether  a  taking  in  the  presence  be  in 
point  of  law  a  taking  from  the  person,  and  it  was  unanimously  deter- 
mined that  it  was.^ 


REGINA   V.   SELWAY. 

Central  Criminal  Court.     1859. 

[Reported  8  Cox  C.  C.  235.] 

The  prisoners  were  indicted  for  robbery  and  stealing  from  the  per- 
son.^ The  evidence  showed  that  the  prosecutor,  who  was  paralyzed, 
received,  while  sitting  on  a  sofa,  in  a  room  at  the  back  of  his  shop,  a 
violent  blow  on  the  head  from  one  of  the  prisoners,  whilst  the  other 
went  to  a  cupboard  in  the  same  room,  and  stole  therefrom  a  cash  box, 
with  which  he  made  off. 

Orridge,  for  the  prisoners,  submitted  that  on  this  evidence  there 
was  no  proof  of  a  stealing  from  the  person.  The  cash  box  at  the  time 
it  was  stolen  was  at  some  distance  from  the  place  where  the  prosecutor 
was  sitting,  and  could  not  be  said,  therefore,  to  be  about  liis  person. 

Hobiitson,  for  the  prosecution,  contended  that  it  was  quite  suffi- 
cient for  the  purposes  of  the  indictment  to  show  that  the  cash  box  was 
under  the  protection  of  the  prosecutor ;  it  need  not  be  in  his  bodily 
possession.  He  was  near  enougli  to  it  to  protect  it,  at  least  by  raising 
an  alarm.  It  was  laid  down  in  1  Hale  P.  C.  533,  "  If  a  thief  put  a  man 
in  fear,  and  tlien  in  his  presence  drive  away  his  cattle,  it  is  a  robbery. 
So,  if  a  man  being  assaulted  by  a  robber  throw  his  purse  into  a  bush, 
or  flying  from  a  robber  let  fall  his  hat,  and  the  robber  in  his  presence 
take  up  the  purse  or  hat  and  carry  it  away,  this  would  be  I'obber}-." 

The  Common  Sergeant,  having  consulted  Mr.  Jnstice  Crowder  and 
Mr.  Baron  Channell,  held  tliat  although  the  cash  box  was  not  taken 
from  the  prosecutor's  person,  yet  it  being  in  the  room  in  which  he  was 
sitting,  he  being  aware  of  that  fact,  it  was  virtually  under  the  jiro- 
tection  of  his  person.  He  should  under  the  circumstances  leave  this 
question  to  the  jury  :  Was  the  cash  box  under  the  protection  of  the 
prosecutor's  person  at  tlie  time  when  it  was  stolen? 

The  jury  found  that  it  was.  Guilty." 

1  Ace.  U.  S.  V.  Jones,  3  Wash.  C.  C.  209,  216.  See  Clements  v.  State,  84  Ga, 
660;  State  v.  Calhoun,  72  la.  432.  — Ed. 

'■2  "  Whosoever  shall  rob  any  person,  or  shall  steal  any  chattel,  money,  or  valualile 
security  from  the  person  of  another,  shall  be  guilty  of  felony."  24  &  25  Vict.  c.  96, 9 
40,  re-enacting  7  Wm.  TV.  and  1  Vict.  c.  87,  s.  5.  —  Ed. 

«  See  Com.  v.  Dimond,  3  Gushing,  235.  —  Ed. 


SECT.  VII.]  COMMONWEALTH   V.   HAETNETT.  733 

SECTION   VII.     {continued.) 
(b)  Larceny  from  a  Building. 

COMMONWEALTH   v.   HARTNETT. 

Supreme  Judicial  Court  of  Massachusetts.     1855. 

[Reported  3  Gray,  450.J 

Indictment  on  St.  1851,  c.  156,  §  4,  for  larceny  in  a  building  ol 
Timoth}'  Hartnett.  At  the  trial  in  the  municipal  court,  it  ai^peared 
that  the  said  Timothy  was  the  husband  of  the   defendant ;  and  the  "X/'^ 

defendant  contended  that  she  could  therefore  be  convicted  of  simple       4     ^ 
larceny  only.     But  Hoar,  J.,  ruled  that  the  evidence  was  sufficient  to       \ 
sustain  the  charge  of  larceny  in  a  building.     And  to  this  ruling  the 
defendant,  being  found  guilt}',  alleged  exceptions. 

J  A.  Andreio,  for  the  defendant. 

J.  H.  Clifford  {Aitovney  General),  for  the  Commonwealth. 

Metcalf,  J.  /The  defendant  is  convicted  of  larceny  in  a  building 
owned  by  her  hTTSTIand  ;  and  as  the  indictment  does  not  aver  that  it 
was  committed  in  the  night  time,  it  must  be  taken  to  have  been  com- 
mitted in  the  daytime.  '  St.  1843,  c.  1,  §  2.  The  question  is  whether 
the  defendant  is  liable  to  the  punishment  prescribed  by  St.  1851,  c.  156, 
§  4,  for  larceny  '•'•  in  an}'  building,"  or  only  to  the  punishment  elsewhere 
prescribed  for  simple  larceny. 

Larcen}^  in  the  daytime,  in  a  dwelling-house  and  in  certain  other 
buildings,  not  broken  into,  was  first  subjected,  in  Massachusetts,  to 
greater  punishment  than  if  not  committed  therein,  by  St.  1804,  c.  143, 
§  6  ;  to  wit,  solitary  imprisonment  of  the  offender,  in  the  state  prison, 
not  exceeding  six  months,  and  confinement  there  afterwards  to  hard 
labor,  not  exceeding  five  years.  By  St.  1830,  c.  72,  §  3,  courts  were 
authorized  to  sentence  such  offender  to  confinement  in  the  county  jail, 
not  exceeding  five  years,  or  to  the  payment  of  a  fine,  according  to  the 
nature  and  aggravation  of  the  offence.  By  the  Rev.  Sts.  c.  126,  §  14, 
it  was  thus  enacted  :  "  Every  person  who  shall  steal,  in  the  daytime,  in 
any  dwelling-house,  office,  bank,  shop  or  warehouse,  ship  or  vessel, 
shall  be  punished  b}-  imprisonment  in  the  state  prison,  not  more  than 
five  years,  or  by  fine  not  exceeding  three  hundred  dollars,  and  im- 
prisonment in  the  countiy  jail,  not  more  than  two  ^^ears."  By  St.  1851, 
c.  156,  §  4,  "  every  person  who  shall  commit  the  offence  of  larceny,  by 
stealing  in  any  building,  shall  be  punished  b}'  imprisonment  in  the  state 
prison  not  moi'e  than  five  3ears,  or  by  fine  not  exceeding  five  hundred 
dollars,  or  imprisonment  in  the  house  of  correction  or  count}'  jail,  not 
exceeding  three  years."  For  simple  larceny,  that  is,  for  theft  not 
aggravated  by  being  from  the  person,  nor  by  being  committed  in  a 
dwelling-house  or  other  building,  ship,  or  vessel,  a  lighter  punishment 


734  COMMONWEALTH    V.    HARTNETT.  [CHAP.  VIII. 

is  prescribed  b}'  the  Rev.  Sts.  c.  126,  §  17,  and  c.  143,  §  5.  And 
we  are  of  opinion  tliat  the  defendant  is  liable  only  to  that  lighter 
punishment. 

We  do  not  suppose  that  an}-  P^nglish  statutes  for  the  punishment  of 
larcen}'  were  ever  held  to  be  in  force  in  Massachusetts.  7  Dane  Ab. 
168.  Yet  the  provisions  of  some  of  them,  and  the  provisions  of  acts  of 
Parliament  for  the  punishment  of  other  offences,  have  been  enacted  by 
our  legislature,  in  every  stage  of  our  history.  And  in  such  cases  (as 
well  as  in  cases  where  English  statutes  respecting  civil  concerns  have 
been  enacted  here),  it  has  always  been  held  that  the  construction  previ- 
ously given  to  the  same  terms,  by  the  English  courts,  is  the  construction 
to  be  given  to  them  b^-  our  courts.  It  is  a  common  learning,  that  the 
adjudged  construction  of  the  terms  of  a  statute  is  enacted,  as  well  as 
the  terms  themselves,  when  an  act,  which  has  been  passed  b^-  the  legis- 
lature of  one  state  or  country,  is  afterwards  passed  by  the  legislature 
of  another.  So  when  the  same  legislature,  in  a  later  statute,  use  the 
terms  of  an  earlier  one  which  has  received  a  judicial  construction, 
that  construction  is  to  be  given  to  the  later  statute.  And  this 
is  manifestly  right.  For  if  it  were  intended  to  exclude  an}'  known 
construction  of  a  previous  statute,  the  legal  presumption  is,  that  its 
terms  would  be  so  changed  as  to  effect  that  intention.  6  Dane  Ab. 
613 ;  Kirkpatrick  v.  Gibson's  Ex'ors,  2  Brock.  388 ;  Pennock  v. 
Dialogue,  2  Pet.  18  ;  Adams  v.  Field,  21  Verm.  266  ;  Whitcomb  v. 
Rood,  20  Verm.  52;  Rutland  v.  Mendon,  1  Pick.  156;  Myrick  v. 
Hasey,  27  Maine,  17.  There  are  many  instances  in  which  our  legis- 
lature have  made  punishable,  as  offences,  acts  which  were  first  made  so 
by  English  statutes.  Among  others  are  our  statutes  concerning  the 
fraudulent  obtaining  of  mone}'  or  goods  by  false  pretences.  In  all  such 
cases,  the  construction  given  by  the  English  courts  is  deemed  to  be  the 
true  one,  when  the  statutes  are  alike.  And  we  have  already  stated, 
that  the  act  of  stealing  in  certain  buildings  was  first  made  an  aggravated 
larceny,  and  subjected  to  a  greater  punishment  than  before,  by  St. 
1804,  c.  143.  Yet  by  the  English  St.  12  Anne,  c.  7  (passed  in  1713, 
and  now  repealed),  it  was  enacted  that  "all  and  every  person  or  persons 
that  shall  feloniously  steal  an}'  money,  goods  or  chattels,  wares  or 
merchandises,  of  the  value  of  forty  shillings  or  more,  being  in  any  dwell- 
ing-house, or  outhouse  thei-eunto  belonging,  although  such  house  or 
outhouse  be  not  actually  broken  by  such  oflfender,  and  although  the 
owner  of  such  goods,  or  any  other  person  or  persons  be  or  be  not  in 
such  house  or  outhouse,  being  thereof  convicted,  shall  be  absolutely 
debarred  of  and  from  the  benefit  of  clergy."  And  by  the  P^nglish  St.  24 
G.  II.  c.  45,  a  like  provision  was  made  in  cases  of  conviction  of  the 
offence  of  feloniously  stealing  goods,  wares,  or  merchandise,  of  the 
value  of  forty  shillinga,  in  any  ship,  barge,  lighter,  boat,  or  other  vessel, 
upon  any  navigable  river,  or  in  any  port  of  entry  or  discharge.  But 
it  was  early  decided  that  the  first  of  these  statutes  did  not  extend  to  a 
stealing  by  one  in  his  own  house,  nor  to  a  stealing  by  a  wife  in  her 


SECT.  VII.]  COMMONWEALTH    V.    SMITH.  735 

husband's  house,  which  is  the  same  as  her  own.  '  The  intention  of  the 
statute  was  declared  to  be,  to  protect  the  owner's^propert}'  in  his  own 
house  from  tlie  depredation  of  others,  or  the  property  of  others  lodged 
in  his  house  ;  thereby  giving  protection  against  all  but  the  owner  him- 
self. It  has  also  been  decided  that  the  [)roi)ert3'  stolen  must  be  such  as 
is"  trsuall}'  under  the  protection  of  the  house,  deposited  there  for  safe 
custody,  and  not  things  immediately  under  the  eye  or  personal  care  of 
some  one  who  happens  to  be  in  the  house.  2  EastF.  C  G44-646  ;  Tlie 
King  V.  Gould,  1  Leach  (3d  ed.),  257  ;  The  King  v.  Thompson  &  Mac- 
daniel,  1  Leach,  379  ;  The  King  v.  Campbell,  2  Leach,  G-i2.  See  also 
Rex  V.  Taylor,  Russ.  &  Ry.  418  ;  Rex  v.  Hamilton,  8  C.  &  P.  49  ; 
Rex  V.  Carroll,  1  Mood.  C.  C.  89.  And  it  has  also  been  held  that  the 
St.  24  G.  II.  c.  45,  does  not  extend  to  stealing  by  the  owner  and 
master  of  a  vessel.     Rex  v.  Madox,  Russ.  &  Ry.  92. 

We  are  of  opinion  that  the  purpose  and  intent  of  St.  1804,  c.  143,  §  6, 
and  of  the  Rev.  .Sts.  c.  126,  §  14,  were  the  same  as  the  purpose  and 
intent  of  St.  12  Anne,  c.  7,  and  that  they  must  have  the  same  con- 
struction which  was  given  to  that  l)efore  these  were  enacted.  Indeed, 
the  attorne}'  general  frankly  admits  this,  and  that  he  cannot  ask  for 
sentence  against  the  defendant,  as  for  an  aggravated  larceny,  unless  it 
is  required  or  warranted  b}'  St.  1851,  c.  156,  §  4.  We  think  that 
statute  has  not  altered  the  law  in  this  matter ;  that  it  has  only  made 
larceny  "in  any  building,"  an  aggravated  offence,  as  former  statutes 
made  it  when  committed  in  certain  enumerated  buildings  ;  and  that  it 
has  not  subjected  to  the  punishment  therein  prescribed  any  larceny 
which,  if  committed  in  either  of  those  buildings,  would  not  have  been 
liable  to  such  punishment.  The  statute  was  passed  in  consequence  of 
the  decision,  in  Commonwealth  v.  White,  6  Cush.  181,  that  the 
passenger  room  of  a  railroad  station  was  not  an  "office,"  within  the 
meaning  of  the  Rev.  Sts.  c.  126,  §  14. 

Defendcmt  to  be  sentenced  for  simple  larceny} 


COMMONWEALTH  v.   SMITH. 
Supreme  Judicial  Court  of  Massachusetts,  1873. 

[Reported  111  Massachusetts,  429.] 

Indictment  alleging  that  the  defendant,  on  April  14,  1872,  at  Brain- 
tree,  certain  bank  notes  "  of  the  propertj',  goods,  and  moneys  of  James 
Gilbride,  in  a  certain  building  there  situate,  to  wit,  the  dwelling-house 
of  one  Patrick  McGuire,  and  then  and  there  in  the  possession  of  the 

1  Ace.  Rex  V.  Gould,  Leach  (4th  ed.),  257.  Otherwise,  iu  England,  under  Stat.  7 
&  8  G.  IV.  ch.  29,  §  12  ;  Reg.  v.  Bowden,  2  Moo.  C.  C  285.  — Ed. 


736  COMMONWEALTH    V.    SMITH.  [CHAP.  VIII. 

said  James  Gilbride,  being  found,  feloniously  did  steal,  take,  and  carry 
away." 

At  the  trial  in  the  Superior  Court  in  Norfolk,  before  Putnam,  J.,  the 
Commonwealth  introduced  evidence  tending  to  show  that  the  defendant 
and  James  Gilbride  lodged  together  in  the  same  room  of  McGuire's 
house  ;  that  Gilbride  went  to  the  room  where  the  defendant  was  already' 
in  bed,  put  the  mone}'  in  his  trunk,  locked  the  trunk,  put  the  key  of  it  in 
his  pocket,  undressed,  put  his  clothes  on  a  chair,  and  went  to  bed  ;  that 
the  defendant  got  up  in  the  night,  took  the  ke}'  from  the  pocket,  opened 
the  trunk,  took  out  the  money,  and  returned  the  key  to  the  pocket. 
Gilbride  testified  that  he  was  awakened  in  the  night,  and  saw  Smith 
with  a  lighted  match  at  one  of  the  trunks  in  the  room,  but  did  not  know 
it  was  his  own  trunk,  and  thought  nothing  more  of  it,  until  he  missed 
the  money. 

The  defendant  asked  the  judge  to  rule  that  upon  this  evidence  the 
jury  could  not  find  the  defendant  guilty  of  larceny  in  a  building,  but 
only  of  simple  larceny.  The  judge  declined  so  to  rule,  and  left  it  to 
the  jury  under  instructions  which  authorized  them  to  find  the  defendant 
guilty  of  larceny  in  a  building.     The  jury  returned  a  verdict  of  guilty. 

The  defendant  then  moved  in  arrest  of  judgment  on  the  ground  that 
the  iudictment  did  not  aver  that  the  larceny  charged  was  committed  in 
any  building,  but  the  judge  overruled  the  motion. 

The  defendant  alleged  exceptions. 

W.  E.  Jewell^  for  the  defendant. 

W.  G.  Colhurn,  Assistant  Attorney  General  (C  R.  Trai7i,  Attor- 
ne}^  General,  with  him),  for  the  Commonwealth. 

Gray,  J.  The  indictment  dul^*  charges  larceny  in  a  building.  The 
allegation  that  the  defendant  stole  property  in  the  dwelling-house 
described  necessarily  includes  a  statement  that  the  act  of  stealing 
was  done  in  the  building.  And  the  whole  charge  was  supported  by 
the  proof  In_i)rder  to  constitute  larceny  in  a  dwelling-house  or  other 
building,  the  property  stolen  must  indeed  be  under  the  protection  of 
the  house,  and  not  und.er  the  eye  or  personal  care  of  some  one  who 
happens  to  be  in  the  house.  The  King  f!.  Owen,  2  Leach  (4th  ed.),  572  ; 
Commonwealth  v.  Hartn'ett,  3  Gray,  450,  452.  'But  inonej'  of  a  lodger 
in  his  trunk,  as  well  as  the  key  of  the  trunk  in  a  pocket  of  his  clothes, 
is  clearly,  while  he  is  in  bed,  undressed,  and  asleep,  not  under  his  own 
protection,  but  under  the  protection  of  the  house.  Rex  v.  Taylor,  Russ. 
&  Ry.  418  ;  Rex  v.  Hamilton,  8  C.  &  P.  49.  The  defendant  was  tliere- 
Coi'e  rightl}'  convicted  of  larceny  in  a  building. 

Exceptions  overruled} 

1  Ace.  Eex  V.  Taylor,  Russ.  &  Ry.  418.  —Ed. 


SECT.  VII.]  COMMONWEALTH    V.    LESTER.  737 


COMMONWEALTH   v.   LESTER. 
Supreme  Judicial  Court  of  Massachusetts,  1880. 

[Reported  129  ^fassachllsetts,  101.] 

Ames,  J.^  In  an  indictment  founded  upon  tlie  Gen.  Sts.  c.  161,  §  15, 
for  larceny  in  a  building,  it  is  nut  enough  to  prove  that  the  property 
stolen  was  in  a  building  at  the  time  of  the  theft,  and  that  the  defend- 
ant was  the  thief.  It  is  necessary  to  show  also  tliat  the  property  was 
under  the  protection"of  the  building,  placed  there  for  safe  keeping,  and 
not  under  the  e3-e  or  personal  care  of  some  one  in  the  building.  The 
watches  in  this  case  were  a  part  of  the  owner's  stock  in  trade,  usually 
kept  by  him  in  the  building.  But  his  testimony,  which  was  the  only 
evidence  to  the  point,  is  to  the  effect  that  he  was  in  charge  of  the  prop- 
erty, when  the  defendant  came  in  and  asked  to  look  at  some  watches, 
and  that  he  handed  the  watches  to  the  defendant ;  that  he  was  not 
sure  whether  the  defendant  held  the  watches  in  his  hand,  or  whether 
they  were  lying  on  the  show-case  ;  and  that  they  were  stolen  while 
he  turned  partially  round  to  place  something  upon  the  shelf  behind 
hira.  If  they  were  upon  the  show-case  when  stolen,  it  would  be  at 
least  doubtful  whether  thej'  must  not,  under  the  circumstances,  be  con- 
sidered as  rather  in  the  possession  of  the  owner  than  under  the  pro- 
tection of  the  building.  If  by  the  act  of  the  owner  they  were  in  the 
hands  of  the  defendant,  they  certainly  derived  no  protection  from  the 
building.  As  the  evidence  left  it  wholly  uncertain  whether  the^'  were 
on  the  show-case  or  in  the  defendant's  own  hands,  it  did  not  warrant  a 
conviction  of  larceny  in  a  building ;  and  the  jury  should  have  been  so 
instructed.  Rex  v.  Campbell,  2  Leach  (4th  ed.)  564  ;  Rex  v.  Castle- 
dine,  2  East  P.  C.  645  ;  Rex  v.  Watson,  2  East  P.  C.  680  ;  s.  c.  2 
Leach,  640  ;  Rex  v.  Hamilton,  8  Car.  &  P.  49,  50,  note ;  Common- 
wealth V.  Smith,  HI  Mass.  429. 

Exceptions  sustained^ 

^  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 

-  Ace.  Rex  V.  Campbell,  Leach  (4th  ed.).  642.  Contra,  Simmons  v.  State,  73  Ga. 
609.     See  Com.  v.  Nott,  135  Mass.  269.  —  Ed. 


738  REX    V.    HEADGE.  [CHAP.   IX. 


CHAPTER   IX. 
ExMBEZZLEMENT. 

REX  V.  HEADGE. 
Crown  Case  Reserved.     1809. 

[Reported  Biissell  ^-  Ryan,  160.] 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley  at 
the  Old  Bailey  Sessions,  September,  1809,  on  the  statute  39  G.  III.  c. 
85,  for  enil)ezzling  three  shillings,  which  he  received  for  and  on  account 
of  his  masters,  James  Clarke  and  John  Giles. 

It  appeared  from  the  evidence  that  the  prosecutors  desired  a  neigh- 
bor, one  Francis  Moxon,  to  go  to  their  shop  and  purchase  some  articles 
in  order  that  they  might  discover  whether  the  prisoner  put  the  money 
which  he  received  for  the  goods  sold  into  the  till ;  the  prosecutors  sup- 
plied Moxon  with  three  shillings  of  their  own  money  for  this  purpose, 
which  money  the}-  marked.  Moxon  went  to  the  shop,  bought  the  arti- 
cles, and  paid  the  prisoner  the  three  shillings.  The  prisoner  embezzled 
this  money. 

It  was  urged  on  behalf  of  the  prisoner  that  the  prosecutors  had  con- 
structively the  possession  of  this  money  up  to  the  time  of  the  embezzle- 
ment and  that  the}-  had  parted  with  nothing  but  the  mere  custody.  The 
prisoner  it  was  contended  might  have  been  indicted  for  larceny  at  com- 
mon law,  but  that  the  statute  did  not  apply  to  cases  where  the  money 
before  its  delivery  to  the  servant  had  been  in  the  masters'  possession 
and  might  legally  be  considered  the  masters'  at  the  time  of  such  deliv- 
ery, as  Moxon  in  this  case  was  the  masters'  agent  and  his  possession 
theirs. 

The  learned  judge  before  whom  this  case  was  tried  thought  it  de- 
served consideration,  and  I'eserved  the  point  for  the  opinion  of  the 
judges. 

In  Michaelmas  term,  1809,  the  judges  met  and  held  the  conviction 
right,  upon  the  authority  of  Bull's  case,  in  which  the  judges  upon  simi- 
lar facts  held  a  common-law  indictment  could  not  be  supported.  It 
seemed  to  be  the  opinion  of  the  judges  that  the  statute  did  not  apply  to 
cases  which  are  larceny-  at  common  law. 


CHAP.  IX.J  EEGINA    V.    CULLUM,  739 


REGINA  V.  CULLUM. 

Crown  Case  Reserved.     1873. 

[Reported  Law  Reports,  2  Crown  Cases  Reserved,  28.] 


'^ 


Case  stated  b}*  the  Chairman  of  the  West  Kent  Sessions. 

The  prisoner  was  indicted  as  servant  to  George  Smeed  for  stealing 
£2,  the  propert}'  of  his  master. 

The  prisoner  was  employed  b}-  Mr.  Smeed  of  Sittingbourne,  Kent,  as 
captain  of  one  of  Mr.  Smeed's  barges. 

The  prisoner's  duty  was  to  take  the  barge  with  the  cargo  to  London, 
and  to  receive  back  such  return  cargo  and  from  such  persons  as  his 
master  should  direct.  The  prisoner  had  no  authorit}'  to  select  a  return 
cargo  or  take  any  other  cargoes  but  those  appointed  for  him.  The 
prisoner  was  entitled  by  way  of  remuneration  for  his  services  to  half 
the  earnings  of  the  barge  after  deducting  half  his  sailing  expenses. 
Mr.  Smeed  paid  the  other  half  of  such  expenses.  The  prisoner's  whole 
time  was  in  Mr.  Smeed's  service.  It  was  the  duty  of  the  prisoner  to 
account  to  Mr.  Smeed's  manager  on  his  return  home  after  every  voy- 
age. In  October  last,  by  direction  of  Mr.  Smeed,  the  prisoner  took  a 
load  of  bricks  to  London.  In  London  he  met  Mr.  Smeed  and  asked  if 
he  should  not  on  his  return  take  a  load  of  manure  to  Mr.  Pye  of  Cax- 
ton.  Mr.  Smeed  expressly*  forbade  his  taking  the  manure  to  Mi\  Pye, 
and  directed  him  to  return  with  his  barge  emptj'to  Burham,  and  thence 
take  a  cargo  of  mud  to  another  place,  Murston.  Going  from  London 
to  Murston  he  would  pass  Caxton.  Notwithstanding  this  prohibition 
the  prisoner  took  a  barge-load  of  manure  from  London  down  to  Mr. 
Pye  at  Caxton,  and  received  from  Mr.  Pye's  men  £4  as  the  freight.  It 
was  not  proved  that  he  professed  to  carrj'  the  manure  or  to  receive  the 
freight  for  his  master.  The  servant  who  paid  the  £4  said  that  he  paid 
it  to  the  prisoner  for  the  carriage  of  the  manure,  but  that  he  did  not 
know  for  whom.  Pearly  in  December  the  prisoner  returned  home  to 
Sittingbourne  and  proposed  to  give  an  account  of  his  voyage  to  Mr. 
Smeed's  manager.  The  prisoner  stated  that  he  had  taken  the  bricks  to 
London,  and  had  returned  empty  to  Burham,  as  directed  by  Mr.  Smeed, 
and  that  there  he  had  loaded  with  mud  for  Murston. 

In  answer  to  the  manager's  inquiries  the  prisoner  stated  that  he  had 
not  brought  back  any  manure  in  the  barge  from  London,  and  he  never 
accounted  for  tlie  £4  received  from  Mr.  Pye  for  the  freight  for  the 
manure. 

The  jury  found  the  prisoner  guilty  as  servant  to  Mr.  Smeed  of  em- 
bezzling £2. 

The  question  was  whether,  on  the  above  facts,  the  prisoner  could  be 
properly  convicted  of  embezzlement.  24  &  25  Vict.  c.  96,  §  68,  enacts 
that  "  Whosoever,  being  a  clerk  or  servant,  or  being  employed  for  the 


/ 


740  REGINA    V.    CULLUM.  [CHAP.  IX. 

purpose  or  in  the  capacity  of  a  clerk  or  servant,  shall  fraudulently  em- 
bezzle any  chattel,  money,  or  valuable  security  which  shall  be  delivered 
to  or  received  or  taken  into  possession  by  him  for  or  in  the  name  or  on 
the  account  of  his  master  or  employer,  or  any  part  thereof,  shall  be 
deemed  to  have  feloniously  stolen  the  same  ft-om  his  master  or  employer, 
although  such  chattel,  money,  or  security  was  not  received  into  the  pos- 
session of  such  master  or  employer  otherwise  than  by  the  actual  pos- 
session of  his  clerk,  servant,  or  other  person  so  employed.  .  .  ." 
No  counsel  appeared  for  the  prisoner. 

M  T.  Smith  (with  him  3Io7'eton  /Smith)  for  the  prosecution.  The 
prisoner  received  this  freight  either  "  for"  or  "  on  account  of  his  mas- 
ter or  employer,"  and  therefore  is  within  the  terms  of  24  &  25  Vict.  c. 
96,  §  68.  The  words  "  by  virtue  of  such  employment,"  which  were  in 
the  repealed  statutes  relating  to  the  same  offence,  have  been  "  advisedly 
omitted  in  order  to  enlarge  the  enactment  and  get  rid  of  the  decisions 
on  the  former  enactments."  Greaves'  Crim.  Law  Consolidation  Acts, 
p.  117. 

[BoviLL,  C.  J.  An  alteration  caused  by  the  decision  of  Rex  v.  Snow- 
lev,  4  C.  &  P.  390,  which  was  a  case  resembling  the  present  one. 

Blackburn,  J.  How  can  the  money  here  be  said  to  have  been 
received  into  the  possession  of  the  servant  so  as  to  become  the  propert}' 
of  the  master?] 

The  prisoner  was  exclusively  emplo3ed  by  the  prosecutor.  With  his 
master's  barge  he  earned,  and  in  the  capacit}'  of  servant  received,  £4 
as  freight,  which  on  receipt  by  him  at  once  became  the  property  of  his 
master.     Rex  v.  Hartley,  Russ.  &  Ry.  139. 

[Blackburn,  J.  But  in  this  case  the  servant  was  disobeying  ordei's. 
Suppose  a  private  coachman  used  his  master's  carriage  without  leave, 
and  earned  half-a-crown  b}'  driving  a  stranger,  would  the  nione}-  be  re- 
ceived for  the  master  so  as  to  become  the  property  of  the  latter?] 

Such  coachman  has  no  authority  to  receive  any  money  for  his  mas- 
ter ;  the  prisoner,  however,  was  entitled  to  take  freight. 

[BoviLL,  C.  J.  He  was  expressly  forbidden  to  do  so  on  this 
occasion.] 

Can  it  be  said  that  he  may  be  guilty  of  embezzlement  if  in  obedience 
of  orders  he  receives  money,  and  yet  not  guilty  of  that  crime  if  he  is 
acting  contrary  to  his  master's  commands?  See  note  to  Regina  v. 
Harris,  Dears.  C.  C.  344,  in  2  Russell  on  Crimes,  4th  ed.,  p.  453, 

[Blackburn,  J.  In  suggesting  that  case  to  be  erroneous  the  editor 
seems  to  assume  that  the  decision  proceeded  on  the  words  "  by  virtue 
of  his  employment,"  whereas  it  did  not. 

Bramwkll,  B.  Suppose  the  captain  of  a  barge  let  his  master's  ves- 
sel as  a  stand  to  the  spectators  of  a  boat-race  and  took  payment  from 
them  for  the  use  of  it?] 

Such  use  would  not  be  in  the  nature  of  his  business. 
[Blackburn,  J.     In  the  note  to  this   section  by  Mr.   Greaves  he 
remarks:  "  Mr.  Davis  (Davis'  Criminal  Statutes,  p.  70),  rightly  says 


CHAP.  IX.J  UEGINA    V.    CULLUM.  741 

that  '  this  omission  avoids  this  technical  distinction ; '  but  he  adds,  '  still 
it  must  be  the  master's  money  which  is  received  by  the  servant,  and 
not  money  wrongfully  received  by  the  servant  by  means  of  false  pre- 
tences.' This  is  plainly  incorrect."  But  in  my  opinion  Mr.  Davis  was 
plainly  correct  and  Mr.  Greaves  wrong.  Regina  i>.  Thorpe,  Dears.  &  B. 
C.  C.  562.] 

BoviLL,  C.  J.  In  the  former  act  relating  to  this  offence  were  the 
words  "  by  virtue  of  his  employment."  The  phrase  led  to  some  diffi- 
culty ;  for  example,  such  as  arose  in  Regina  v.  Snowley,  4  C.  &  P.  390, 
and  Regina  v.  Harris,  Dears.  C.  C.  344.  Therefore  in  the  present 
statute  those  words  are  left  out,  and  §  68  requires  instead  that  in  order 
to  constitute  the  crime  of  embezzlement  bj  a  clei'k  or  servant  the 
"  chattel,  money,  or  valuable  security  .  .V^  shall  be  delivered  to  or 
received  or  taken  into  possessio»— bjiuhim,  i5f~or  in  the  name  or  on 
account  of  his  master  or  employer."  ^ 

Those  words  are  essential  to  the  definition  of  the  crime  of  embezzle- 
ment under  that  section.  The  prisoner  here,  contrary  to  his  master's 
orders,  used  the  barge  for  his,  the  servant's,  own  purposes,  and  so 
earned  money  which  was  paid  to  him,  not  for  his  master  but  for  him- 
self; and  it  is  expressly  stated  that  there  was  no  proof  that  he  pro- 
fessed to  carry  for  the  master,  and  that  the  hirer  at  the  time  of  paying 
the  money  did  not  know  for  whom  he  paid  it.  The  facts  before  us 
would  seem  more  consistent  with  the  notion  that  the  prisoner  was  mis- 
using his  master's  property  and  so  earning  money  for  himself  and  not 
for  his  master.  Under  those  circumstances  the  money  would  not  be 
received  "  for"  or  "in  the  name  of"  or  "on  account  of"  his  master 
but  for  himself,  in  his  own  name,  and  for  his  own  account.  His  act 
therefore  does  not  come  within  the  terms  of  the  statute,  and  the  convic- 
tion must  be  quashed. 

Bramwell,  B.  I  am  of  the  same  opinion.  I  think  in  these  cases  we 
should  look  at  the  substance  of  the  charge  and  not  merel}-  see  whether 
the  case  is  brought  within  the  bare  words  of  the  Act  of  Parliament. 
Now  the  wrong  committed  b}^  the  prisoner  was  not  fraudulent  or 
wrongful  with  respect  to  mone}',  but  consisted  in  the  improper  use  of 
his  master's  chattel.  The  offence  is,  as  I  pointed  out  during  argument, 
onlj'  that  which  a  barge-owner's  servant  might  be  guilty  of,  if  when 
navigating  the  barge,  he  stopped  it,  allowed  persons  to  stand  upon  it  to 
view  a  passing  boat-race,  charged  them  for  so  doing,  and  pocketed  the 
money  they  paid  to  him.  There  is  no  distinction  between  that  case 
and  this  save  that  the  supposititious  case  is  more  evidently  out  of  the 
limits  of  the  statute. 

The  use  of  this  barge  by  the  prisoner  was  a  wrongful  act  yet  not  dis- 
honest in  the  sense  of  stealing.  But  I  will  add  that  I  do  not  think  this 
case  even  within  the  words  of  the  statute.  The  servant  undoubtedly 
did  not  receive  the  mone}'  "  for"  his  master  nor  "  on  account  of"  his 
master  nor  "in  the  name"  of  his  master.  Nevertheless  I  doubt  ex- 
tremely whether  on  some  future  day  great  difficulty  may  not  arise  as  to 


742  EEGINA  V.    BARNES,  [CHAP.  IX. 

the  meaning  of  these  expressions  in  §  68,  for  I  doubt  whether,  although 
the  servant  had  used  his  master's  name,  he  would  have  been  within  the 
terms  of  the  Act  of  Parliament.  "  In  the  name  of"  his  master  is  a  very 
curious  expression.  Suppose  a  person  in  service  as  a  carter  had  also 
a  horse  and  cart  of  his  own  and  employed  them  to  do  some  or  other 
work,  professing  them  to  be  his  master's,  and  received  hire  for  it  "  in 
the  name  of"  his  master,  would  that  be  embezzlement?  Could  he  be 
rightly  convicted  under  this  section?  I  doubt  it  extremely.  The  words 
''  in  the  name  of"  his  master,  altliough  inserted  witli  a  desire  to  obviate 
difficulties,  seem  to  me  likely  hereafter  to  raise  them.^ 


REGINA  V.  BARNES. 
Devizes  Assizes.     1858. 

[Reported  8  Cox  C.  C.  129.] 

Prisoner  was  indicted  for  that  he  being  the  servant  of  Joseph  Hill 
and  others,  did  embezzle  two  sums  of  £68  lO.s.,  and  £29  9s.  7c?.,  their 
property. 

Edlin,  for  the  prosecution. 

Cole,  for  the  prisoner. 

It  was  proved  that  prisoner,  who  was  a  coal  and  timber  merchant,  fell 
into  difficulties,  and  made  an  assignment  of  all  his  goods,  effects,  and 
book  debts.  After  the  execution  of  this  assignment,  he  received  the 
two  sums  of  money  in  question,  which  had  been  debts  previously  due 
to  him,  and  he  had  not  accounted  for  the  receipt  of  those  sums.  After 
the  execution  of  the  deed  the  prisoner  had  been  employed  by  the 
trustees,  at  a  salary,  to  conduct  the  business  for  the  benefit  of  the 
trustees. 

Cole  submitted  that  the  debts  being  only  clioses  in  action  could  not 
be  assigned  in  law,  they  could  only  be  sued  for  and  recovered  in  the 
prisoner's  name  ;  and  in  law  he  was  the  person  entitled  to  receive 
them  ;  in  fact,  he  received  his  own  money. 

Edlin  contended  that  immediately  on  the  receipt  of  the  money  by  the 
prisoner  it  became  the  property  of  the  trustees,  and  then  the  prisoner 
was  guilty  of  embezzlement. 

Cole,  in  reply.  Embezzlement  is  the  stopping  of  money  in  transitu 
to  the  employer.  If  rightly  received  by  the  prisoner,  the  keeping  of 
it  afterwards  was  not  embezzlement.  He  could  not  be  guilty  of 
larceny  unless  the  money  was  ear  marked,  and  if  ear-marked,  it  was 
the  debt  supposed  to  be  assigned,  but  which  had  not  passed  in  law, 
only  in  equity. 

1  Concurring  opinions  of  Blackburn  and  Archibald,  J.T.,  are  omitted.  See  ace.  Reg. 
V.  Harris,  6  Cox  C.  C.  363  ;  Reg.  v.  Read,  3  Q.  B.  D.  131 ;  Brady  v.  State,  21  Tex. 
App.  659.     See  ex  parte  Hedley,  31  Cal.  108.  — Ed. 


CHAP.  IX.]  COMMONWEALTH    V.    HAYS.  743 

Byles,  J.,  said,  the  difficulty  was  to  make  out  that,  in  point  of  law, 
the  prisoner  was  a  clerk,  or  servant,  or  actiug^Jn  the  capacity  of  a 
servant  within  the  meaning  of  the  statute.  I  It  was  clear  that  these 
debts  were  not  assignable  in  law  ;  the}'  were  clioses  in  action,  and  the 
deed  would  only  bind  him  in  equity.  The  moment  he  received  these 
moneys,  they  wereJiis  own  moneys, — -he  received  what,  in  point  of  law, 
was  his  own  money,  i  How  then,  could  he  be  guilty  of  embezzlement; 


or  how  could  he  be  said  to  be  clerk  or  servant  to  the  trustees  ?  He 
could  not,  in  point  of  law,  pass  the  property  in  the  debts  due  to  him 
before  the  deed  was  executed.  His  assignees  were  only  equitable 
assignees  ;  they  could  onl}'  sue  in  his  name.  The  deed  could  only  pass 
that  which  he  actually  had  in  his  possession  at  the  time  the  deed  was 
executed.  Under  these  circumstances  the  indictment  could  not  be 
sustained. 

The  prisoner  was,  therefore,  acquitted. 


COMMONWEALTH  v.  HAYS. 
Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  14  Gray,  62.] 

Indictment  on  St.  1857,  c.  233,  which  declares  that  "  if  any  person, 
to  whom  any  money,  goods,  or  other  propert}^,  which  may  be  the  sub- 
ject of  larceny,  shall  have  been  delivered,  shall  embezzle,  or  fraudu- 
lently convert  to  his  own  use,  or  shall  secrete,  with  intent  to  embezzle 
or  fraudulently  convert  to  his  own  use,  such  money,  goods,  or  property, 
or  any  part  thereof,  he  shall  be  deemed,  b}^  so  doing,  to  have  committed 
tlie  crime  of  simple  larcen}'."  The  indictment  contained  two  counts, 
one  for  embezzlement,  and  one  for  simple  larcen}^ 

At  the  trial  in  the  Court  of  Common  Pleas  in  Middlesex,  at  October 
term,  1858,  before  Aiken,  J.,  Amos  Stone,  called  as  a  witness  by  the 
Commonwealth,  testified  as  follows:  "I  am  treasurer  of  the  Charles- 
town  Five  Cent  Savings  Bank.  On  the  17th  day  of  October,  1857,  the 
defendant  came  into  the  bank,  and  asked  to  draw  his  deposit,  and 
presented  his  deposit  l)ook.  I  took  his  book,  balanced  it,  and  handed 
it  back  to  him.  It  was  for  one  hundred  and  thirty  dollars  in  one  item. 
I  then  counted  out  to  him  two  hundred  and  thirty  dollars,  and  said, 
*•  There  are  two  hundred  and  thirt}-  dollars.'  The  defendant  took  the 
mone}'  to  the  end  of  the  counter,  and  counted  it,  and  then  left  the  room. 
Soon  after  the  defendant  had  left,  I  discovered  that  I  had  paid  him  one 
hundred  dollars  too  much.  After  the  close  of  bank  hours  I  went  in 
search  of  the  defendant,  and  told  him  that  I  had  paid  him  one  hundred 
dollars  too  much,  and  asked  him  to  adjust  the  matter.  The  defendant 
asked  me  how  I  knew  it.     He  asked  me  if  I  could  read.     I  said  '  Yes.' 


V44  COMMONWEALTH    V.    HAYS.  [CHAP.  IX. 

He  then  showed  me  his  book,  and  said,  '  What  does  that  say?'  I  took 
it,  and  read  in  it  one  hundred  and  thirty  dollars.  The  defendant  then 
said,  '  That  is  what  I  got.'  He  exhibited  two  fifties,  two  tens,  and  a 
ten  dollar  gold  piece,  and  said,  '  That  is  what  I  got.'  I  then  said  to 
him,  '  Do  you  say  that  is  all  and  precisely  what  I  gave  you?  '  He  re- 
plied, 'That  is  what  I  got.'  I  then  said  to  him,  '  I  can  prove  that  j'ou 
got  two  hundred  and  thirty  dollars.'  He  replied,  'That  is  what  I  want; 
if  you  can  prove  it,  you  will  get  it ;  otherwise,  you  wont.'  I  intended 
to  paj'the  defendant  the  sum  of  two  hundred  and  thirt}'  dollars,  and  did 
so  pay  him.  I  tlien  supposed  that  the  book  called  for  two  hundred  and 
thirty  dollars.  Books  are  kept  at  the  bank,  containing  an  account  with 
depositors,  wherein  all  sums  deposited  are  credited  to  them,  and  all 
sums  paid  out  are  charged  to  them." 

The  defendant  asked  the  court  to  instruct  the  jury  that  the  above 
facts  did  not  establish  such  a  delivery  or  embezzlement  as  subjected  the 
defendant  to  a  prosecution  under  the  St.  of  1857,  c.  233,  and  did  not 
constitute  the  crime  of  larceny. 

The  court  refused  so  to  instruct  the  jury  ;  and  instructed  them  "  that 
if  the  sum  of  two  hundred  and  thirty  dollars  w^as  so  delivered  to  the 
defendant,  as  testified,  and  one  hundred  dollars,  parcel  of  the  same, 
was  so  delivered  by  mistake  of  the  treasurer,  as  testified.,  and  the  de- 
fendant knew  that  it  was  so  delivered  by  mistake,  and  knew  he  was 
not  entitled  to  it,  and  afterwards  the  money  so  delivered  by  mistake 
was  demanded  of  him  by  the  treasurer,  and  the  defendant,  having  such 
knowledge,  did  fraudulently,  and  with  a  felonious  intent  to  deprive  the 
bank  of  the  money,  convert  the  same  to  his  own  use,  ho  would  be 
liable  under  this  indictment."  The  jury  returned  a  verdict  of  guilt}', 
and  the  defendant  alleged  exceptions. 

N.  St.  J.  Green.,  for  the  defendant. 

S.  H.  Phillips  (Attorney  General),  for  the  Commonwealth. 

BiGELOW,  J.  The  statute  under  which  this  indictment  is  found  is 
certainly  expressed  in  very  general  terms,  which  leave  room  for  doubt 
as  to  its  true  construction.  But  interpreting  its  language  according  to 
the  subject  matter  to  which  it  relates,  and  in  the  light  of  the  existing 
state  of  the  law,  which  the  statute  was  intended  to  alter  and  enlarge, 
we  think  its  true  meaning  can  be  readily  ascertained. 

The  statutes  relating  to  embezzlement,  both  in  this  country  and  in 
England,  had  their  origin  in  a  design  to  supply  a  defect  which  was 
found  to  exist  in  the  criminal  law.  By  reason  of  nice  and  subtle  dis- 
tinctions, which  the  courts  of  law  had  recognized  and  sanctioned,  it 
was  difficult  to  reach  and  punish  the  fraudulent  taking  and  appropria- 
tion of  money  and  chattels  by  persons  exercising  certain  trades  and 
occupations,  by  virtue  of  which  they  held  a  relation  of  confidence  or 
trust  towards  their  employers  or  principals,  and  thereby  became  pos- 
sessed of  their  property.  In  such  cases  the  moral  guilt  was  the  same 
as  if  the  oflfender  had  been  guilty  of  an  actual  felonious  taking ;  but  in 
man}^  cases  he  could  not  be  convicted  of  larceny,  because  the  property 


CHAP.  IX.]  COMMONWEALTH  V.    HAYS.  745 

which  had  been  fraudulently  converted  was  lawfully  in  his  possession 
by  virtue  of  his  employment,  and  there  was  not  that  technical  taking 
or  asportation  which  is  essential  to  the  proof  of  the  crime  of  larceny. 
The  King  v.  Bazeley,  2  Leach  (4th  ed.),  835 ;  2  East  P.  C.  568. 

The  statutes  relating  to  embezzlement  were  intended  to  embrace  this 
class  of  offences ;  and  it  may  be  said  generally  that  they  do  not  apply 
to  cases  where  the-  element  of  a  breach  of  trust  or  confidence  in  the 
fraudulent  conversion  of  money  or  chattels  is  not  shown  to  exist/  This 
is  the  distinguishing  feature  of  the  provisions  in  the  Rev.  Sts.  c.  126, 
§§  27-30,  creating  and  punishing  the  crime  of  embezzlement,  which 
carefully  enumerate  the  classes  of  persons  that  may  be  subject  to  the 
penalties  therein  provided.  Those  provisions  have  been  strict!}'  con- 
strued, and  tlie  operation  of  the  statute  has  been  carefull}'  confined  to 
persons  having  in  their  possession,  by  virtue  of  their  occupation  or 
emplo3'ment,  tlie  money  or  property  of  another,  which  has  been  fraud- 
ulently converted  in  violation  of  a  trust  reposed  in  them.  Common- 
wealth V.  Stearns,  2  Met.  343  ;  Commonwealth  v.  Libbey,  11  Met.  64; 
Commonwealth  v.  Williams,  3  Gray,  461.  In  the  last  named  case  it 
was  held,  that  a  person  was  not  guilt}'  of  embezzlement,  under  Rev. 
Sts.  c.  126,  §  30,  who  had  converted  to  his  own  use  money  which  had 
been  delivered  to  him  by  another  for  safe  keeping. 

The  St.  of  1857,  c.  233,  was  pi'obably  enacted  to  supply  the  defect 
which  was  shown  to  exist  in  the  criminal  law  by  this  decision,  and  was 
intended  to  embrace  cases  where  property  had  been  designedly  delivered 
to  a  person  as  a  bailee  or  keeper,  and  had  been  fraudulently  converted 
by  him.  But  in  this  class  of  cases  there  exists  the  element  of  a  ta-ust 
or  confidence  reposed  in  a  person  by  reason  of  the  delivery  of  property 
to  him,  which  he  voluntarily  takes  for  safe  keeping,  and  which  trust  or 
confidence  he  has  violated  by  the  wrongful  conversion  of  the  property. 
Beyond  this  the  statute  was  not  intended  to  go.  Where  money  paid  or 
property  delivered  through  mistake  has  been  misappropriated  or  con- 
"^verted  by  the  party  receiving  it,  there  is  no  breach  of  a  trust  or  viola- 
tion of  a  confidence  intentionally  reposed  by  one  party  and  voluntarily 
assumed  by  the  other.  The  moral  turpitude  is  therefore  not  so  great 
as  in  those  cases  usually  comprehended  within  the  offence  of  embezzle- 
ment, and  we  cannot  think  that  the  legislature  intended  to  place  them 
on  the  same  footing.  We  are  therefore  of  opinion  that  the  facts  proved 
in  this  case  did  not  bring  it  within  the  statute,  and  that  the  defendant 
was  wrongly  convicted.  Exceptions  sustained.^ 

1  See  Reg.  v.  Robson,  9  Cox  C.  C.  29.  —  Ed. 


746  COMMONWEALTH    V.    BERRY.  [CHAP.  IX 


COMMONWEALTH  v.  BERRY. 
Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Reported  99  Massachusetts,  428.] 

Hoar,  J.^  Tlie  bill  of  exceptions  states  that  this  indictment  was 
^  found  under  Gen.  Sts.  c.  161,  §  41.     It  seems  to  be  a  good  indictment 

under  that  section,  or  under  §  35  of  the  same  chapter.  Commonwealth 
V.  Concannon,  5  Allen,  506  ;  Commonwealth  v.  Williams,  3  Gra}',  461. 
But  the  more  important  question  is,  whether,  upon  the  facts  reported, 
an  indictment  can  be  sustained  for  the  crime  of  embezzlement.  The 
statutes  creating  that  crime  were  all  devised  for  the  purpose  of  punish- 
ing the  fraudulent  and  felonious  appropriation  of  property  which  had 
been  intrusted  to  the  person,  b\'  whom  it  was  converted  to  his  own  use, 
in  such  a  manner  that  the  possession  of  the  owner  was  not  violated,  so 
that  he  could  not  be  convicted  of  larceny  for  appropriating  it.  Proof 
of  embezzlement  will  not  sustain  a  charge  of  larceny.  Commonwealth 
V.  Simpson,  9  Met.  138  ;  Commonwealth  v.  King,  9  Cush.  284.  In  the 
case  last  cited,  it  is  said  by  Mr.  Justice  Dewey  that  "  the  offences  are 
b}'  us  considered  so  far  distinct  as  to  require  them  to  be  charged  in  such 
terms  as  will  indicate  the  precise  offence  intended  to  be  charged."  "  If 
the  goods  are  not  in  the  actual  or  constructive  possession  of  the  master, 
at  the  time  the}'  are  taken,  the  offence  of  the  servant  will  be  embezzle- 
ment, and  not  larceny."  We  see  no  reason  why  the  converse  of  the 
proposition  is  not  true,  that,  if  the  property  is  in  the  actual  or  construc- 
tive possession  of  the  master  at  the  time  it  is  taken,  the  offence  will  be 
larcenv,  and  not  embezzlement.  And  it  has  been  so  held  in  England. 
AVhere  the  prisoner  was  the  clerk  of  A.,  and  received  money  from  the 
hands  of  another  clerk  of  A.  to  pay  for  an  advertisement,  and  kept 
part  of  the  money,  falsely  representing  that  the  advertisement  had  cost 
more  than  it  had  ;  it  was  held  that  this  was  larceny  and  not  embezzle- 
ment, because  A.  had  had  possession  of  the  money  by  the  hands  of  the 
other  clerk.  Rex  v.  Murray,  1  Mood.  276  ;  s.  c.  5  C.  &  P.  145.  The 
distinction  is  between  custody  and  possession.  A  servant  who  receives 
from  his  master  goods  or  money  to  use  for  a  specific  purpose  has  the 
custody  of  them,  but  the  possession  remains  in  the  master. 

The  St.  14  &  15  Vict.  c.  100,  §  13,  provided  that  whenever,  on  the 
trial  of  an  indictment  for  embezzlement,  it  should  be  proved  that  the 
taking  amounted  to  larceny,  there  should  not  be  an  acquittal,  but  a 
conviction  might  be  had  for  larceny.  We  have  no  similar  statute  in 
this  Commonwealth. 

In  the  present  case,  the  defendant,'  who  was  employed  as  a  servant, 
was  directed  by  one  member  of  the  firm  who  employed  him  to  take  a 
sum  of  money  from  him  to  another  member  of  the  firm.     Hehad  the 

1  The  opinion  onh'  is  given,  it  sufficiently  states  the  case 


CHAP.  IX.]  COMMONWEALTH    V.    FDSTKR.  747 

custody  of  the  money,  but  not  any  legal  or  separate  possession  of  it. 
The  possession  remained  in  his  master.  His  fraudulent  and  feloni- 
ous appropriation  of  it  was  therefore  larceny,  and  not  embezzlement. 
Commonwealth  v.  O'Malle}-,  97  Mass.  584  ;  Commonwealth  v.  Hays, 
U  Gray,  62;  People  v.  Call,  1  Denio,  120;  United  States  r.  Clew,  4 
Wash.  C.  C.  702. 

In  People  v.  Hennessey,  15  Wend.  147,  cited  for  the  Commonwealth, 
the  money  embezzled  by  the  defendant  had  never  come  into  the  posses- 
sion of  his  master.  And  in  People  v.  Dalton,  15  Wend.  581,  the 
possession    of  the  defendant  was  that  of  a  bailee. 

Exceptions  sustained} 


COMMONWEALTH  v.  FOSTER. 
Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Reported  107  Massachusetts,  221.] 

Indictment  for  embezzlement,  found  at  July  term,  1870,  of  the 
Superior  Court  in  Suffolk. 

At  the  trial,  before  Wilkinson,  J.,  John  Langley  testified  that  about 
May  13,  1870,  being  in  need  of  money,  he  made  two  promissory  notes 
payable  to  his  own  order  and  indorsed  by  himself,  payable  in  four  and 
six  months  respectively,  for  $1250  each,  and  delivered  them  to  the  de- 
fendant upon  the  special  agreement  of  the  defendant  to  sell  the  notes 
and  deliver  the  proceeds  to  Nathan  A.  Langley,  a  brother  of  the  wit- 
ness, charging  a  commission  for  his  services  ;  that  at  the  same  time, 
and  as  a  part  of  the  transaction,  the  defendant  gave  to  the  witness,  as 
receipts,  the  defendant's  own  notes  of  the  same  tenor  and  date  as  those 
delivered  to  him  by  the  witness,  which  were  deposited  by  the  witness 
with  his  brother,  to  be  by  him  given  up  to  the  defendant  when  the  lat- 
ter sliould  deliver  the  proceeds  of  the  witness's  notes  in  pursuance  of 
tiie  agreement  before  stated  ;  and  that  he  did  not  know  whether  the 
defendant  was  a  broker  or  not,  and  did  not  deal  with  him  as  such. 

It  further  appeared  that  the  defendant  sold  the  notes  of  John  Lang- 
ley to  one  Wilson  for  $1000  in  cash,  and  a  mortgage  on  real  estate 
valued  at  $1000  ;  and  that  he  had  not  delivered  any  part  of  the  pro- 
ceeds to  John  Langley  or  his  brother,  but,  when  asked  for  them  by 
the  former,  replied  that  he  had  used  them  and  was  unable  to  deliver 
them.  It  did  not  appear  that  John  Langley  or  his  brother  had  ten- 
dered to  the  defendant  the  notes  given  by  him. 

Upon  the  close  of  the  evidence  for  the  Commonwealth,  the  defend- 
ant demurred  thereto,  as  insufficient  to  support  a  verdict  of  guilty  ;  but 
the  judge  overruled  the  demurrer.  The  defendant  then  testified  that 
he  was  a  real  estate  broker ;   and  that  he  negotiated  the  notes  in  the 

1  Ace.  Rex  V.  Sullens,  1  Moo.  C.  C.  129;  Reg.  v.  Masters,  3  Cox  C  C.  178. —  Ed. 


748  PEOPLE    V.    HUKST.  [CHAP.  IX, 

manner  testified  to  by  John  Langley,  and  used  the  money,  partly  in 
business  as  a  provision  dealer,  in  which  he  was  also  engaged  at  the 
time,  and  partly  in  paying  his  debts. 

The  judge  thereupon  instructed  the  jury  "  that  it  was  a  question  of 
fact,  for  them  to  decide  upon  the  evidence,  whether  John  Langley 
employed  the  defendant  as  a  broker;  that  if  the  defendant  was  em- 
ployed merely  to  sell  the  notes,  receive  "tlie  proceeds  and  pay  over  the 
"same  specifically  to  the  brother,  without  any  authority  to  mix  them 
with  his  own  funds,  a  fraudulent  conversion  of  them  would  be  em- 
bezzlement ;  but  that  if  he  was  employed  as  a  broker,  to  negotiate  the 
notes  in  the  course  of  his  business,  with  authority,  derived  from  the 
nature  of  that  business  or  otherwise,  to  mix  the  proceeds  as  aforesaid, 
his  use  of  them  would  not  be  embezzlement."  The  jury  returned  a 
verdict  of  guilty,  and  the  defendant  alleged  exceptions. 

C.  R.  Train,  for  the  defendant. 

C.  Allen,  Attorney  General,  for  the  Commonwealth. 

By  the  Court.  Under  the  instructions  given  them,  the  jury  must 
have  found  that  the  defendant  was  an  agent  within  the  statute,  and 
embezzled  his  employer's  money.  The  notes  given  by  him  appear  to 
have  been  given  to  answer  the  purpose  of  receipts,  and  not_foi^tlie 
purpose  of  transferring  to  him  any  property  in  the  notes  received  by 
dim,  or  the  money  received  by  him  on  the  sale  of  the  notes.  Com- 
monwealth V.  Stearns,  2  Met.  343 ;  Commonwealth  v.  Libbey,  11 
Met.  64.  Exceptions  overruled.^ 


PEOPLE  V.  HURST. 
Supreme  Court  op  Michigan.     1886. 

[Reported  62  Michigan,  276.] 

Campbell,  C.  J.  Respondent  was  convicted  of  embezzling  S275, 
alleged  to  have  been  put  in  his  hands  by  one  Lena  J.  Smith  as  her 
agent.  Respondent  was  a  lawyer,  and  also  engaged  more  or  less  iu 
renting  houses.  Mrs.  Smith  formed  his  acquaintance  while  seeking  to 
rent  a  house.  She  got  him  to  lend  8400  for  her,  which  he  did  on  mort- 
gage. She  farther  said  she  had  $1,100  more  to  lend.  He  said  he  had 
a  place  for  $700,  which  he  actually  lent  on  first  mortgage.  He  also 
showed  her  a  letter  from  a  man  who  had  a  parcel  of  forty  acres  of 
land  to  sell,  and  he  wanted  her  to  give  him  the  money  to  buy  it,  as 
he  knew  of  a  purchaser  who  would  buy  at  an  advance.  She  handed 
him  $400  to  buy  the  land,  and  said  he  might  have  the  profit.  He  told 
her  where  the  land  was,  but  she  could  not  remember,  and  did  not  tes- 

1  See  Mulford  t-.  Teople,  139  111.  586— Ed. 


CHAP.  IX.]  PEOPLE   V.    HURST.  749 

tify  upon  that  point.  This  was  on  March  31,  1882.  The  embezzle- 
ment is  charged  as  of  that  day. 

About  the  middle  of  April  she  saw  him  at  his  liouse,  intoxicated. 
She  aslved  him  lor  iier  papers,  and  if  he  had  invested  the  money,  and 
he  shook  liis  liead,  and  said  he  had  been  "on  a  drunk."  She  asked 
for  her  money,  and  he  gave  her  SI 00,  and  a  chattel  mortgage  wliich 
he  owned  for  $25.  She  asked  Iiim  if  tliat  was  all  he  had,  and  he  said 
it  was,  and  promised  to  pay  the  balance  in  a  month  or  two,  and  asked 
her  to  wait  on  him.  She  called  on  him  frequently,  and  in  the  fall  he 
conveyed  to  her  forty  acres  of  land  in  Cheboygan  County  as  security 
until  he  could  pay  her.  He  said  he  was  selling  some  land  for  a  lady 
in  Springvvells  ;  and,  if  he  succeeded,  his  commissions  would  exceed 
his  debt  to  her,  and  he  would  pay  her,  and  she  could  return  the  deed, 
which  she  need  not  record,  but  he  would  pay  for  recording.  She 
agreed  to  wait  on  him,  and  hold  the  deed  as  security  a  little  longer, 
until  he  could  sell  the  twenty-five  acres  referred  to.  She  subsequently 
dunned  him  frequently,  and,  finding  he  had  an  interest  in  a  patent 
right,  asked  him  to  assign  that  to  her  as  security,  which  he  did. 

There  was  some  otlier  testimony  which  was  material,  in  favor  of 
defendant,  on  which  his  counsel  made  some  points,  which  we  do  not 
now  think  it  necessary  to  decide. 

Jji.jo.ai',  opinion,  the  testimony'  did  not  make  out  a  case  of  embezzle- 
ment. Before  that  offence  can  be  m.ade  out,  it  must  distinctly  appear 
that  the  respondent  has  acted  with  a  felonious  intent,  and  made  an  in- 
tentionally wrong  disposal,  indicating  a  design  to  cheat  and  deceive 
the  owner.  A  mere  failure  to  pay  over  is  not  enough  if  that  intent  is 
not  plainly  apparent.  This  was  decided  in  People  v.  Galland,  55  Mich. 
628.  See  also  Reg.  i\  Norman,  1  C.  &  M.  501  ;  Reg.  v.  Creed,  1  C. 
&  K.  63  ;  Rex  v.  Hodgson,  3  C.  &  P.  422  ;  2  Russ.  Cr.  182  ;  2  Bish. 
Crim.  Law,  §§  376,  377. 

In  this  case  there  was  nothing  indicating  concealment  or  a  felonious 
disposition.  A  candid  admission  was  made  at  once  on  inquiry,  and 
partial  payment  was  made  and  security  given  at  different  times,  when 
asked.  The  debt  was  admitted  and  recognized  as  a  debt  on  both 
sides.  Whatever  wrong  may  have  been  done,  there  was  no  embezzle- 
ment proven. 

The  conviction  must  be  quashed,  and  the  court  below  advised  to 
discharge  the  prisoner. 

The  other  justices  concurred.^ 

1  Ace.  People  v.  Wadsworth,  63  Mich.  500.  —  Eu 


/ 


750  KEGINA    V.   KILHAM.  [CHAP.  X. 


CHAPTER   X. 
OBTAINING  PROPERTY  BY  FALSE  PRETENCES. 


SECTION   I. 

The  Question  of  Title. 

REGINA   V.   KILHAM. 
Crown  Case  Reserved.     1870. 

[Reported  Law  Reports,  1  Crown  Cases  Reserved,  261.] 

Case  stated  by  the  Recorder  of  York, 
■  Indictment  under  24  &  25  Vict.  c.  96,  §  88,  for  obtaining  goods  by 
false  pretences. 

The  prisoner  was  tried  at  the  last  Easter  Quarter  Sessions  for  York. 
The  prisoner,  on  the  19th  of  March  last,  called  at  the  livery  stables  of 
Messrs.  Thackray,  who  let  out  horses  for  hire,  and  stated  that  he  was 
sent  by  a  Mr.  Gibson  Hartley  to  order  a  horse  to  be  ready  the  next 
morning  for  the  use  of  a  son  of  Mr.  Gibson  Hartley,  who  was  a  cus- 
tomer of  the  Messrs.  Thackray.  Accordingly,  the  next  morning  the 
prisoner  called  for  the  horse,  which  was  delivered  to  him  by  the  hostler. 
The  prisoner  was  seen,  in  the  course  of  the  same  day,  driving  the 
horse,  which  he  returned  to  Messrs.  Thackray's  stables  in  the  even- 
ing. The  hire  for  the  horse,  amounting  to  7s.,  was  never  paid  by  the 
prisoner. 

The  prisoner  was  found  guilty. 

The  question  was,  whether  the  prisoner  could  properly  be  found 
guilty  of  obtaining  a  chattel  by  false  pretences  within  the  meaning  of 
24  &  25  Vict.  c.  96,  §  88. 

The  case  of  Regina  ?'.  Boulton,  1  Den.  C.  C.  508,  was  relied  on  on 
the  part  of  the  prosecution. 

The  case  was  argued  before  Bovill,  C.  J.,  Willes,  Byles,  and 
Hannen,  J.J.,  and  Cleasby,  B. 

May  7.     No  counsel  appeared  for  the  prisoner. 

Simpson,  for  the  prosecution.' 

1  The  argument  is  omitted. 


SECT.  LJ  REGINA   V.    KILHAM.  751 

BoviLL,  C.  J.  We  are  of  opinion  that  the  conviction  in  this  case 
cannot  be  supported.  The  Stat.  24  &  25  Vict.  c.  96,  §  88,  enacts 
that,  *'  whosoever  shall,  by  any  false  pretence,  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  security,  with  intent  to 
defraud,  shall  be  guilty  of  misdemeanor."  The  word  "obtain"  in 
this  section  does  not  mean  obtain  the  loan  of,  but  obtain  the  property 
in,  any  chattel,  etc.  This  is,  to  some  extent,  indicated  by  the  pro- 
viso, that  if  it  be  proved  that  the  person  indicted  obtained  the  prop- 
erty in  such  manner  as  to  amount  in  law  to  larceny,  he  sliall  not,  by 
reason  thereof,  be  entitled  to  be  acquitted  ;  but  it  is  made  more  clear 
by  referring  to  the  earlier  statute  from  which  the  language  of  §  88  is 
adopted.  7  &  8  G.  IV.  c.  29,  §  53,  recites  that  "  a  failure  of  jus- 
tice frequently  arises  from  the  subtle  distinction  between  '  larceny 
and  fraud,'"  and  for  remedy  thereof  enacts  that  "if  any  person 
shall,  by  any  false  pretence,  obtain,"  etc.  The  subtle  distinction 
which  tlie  statute  was  intended  to  remedy  was  this,'-  Tliat  if  a  person 
by  fraud  induced  another  to  part  with  the  possession  only  of  goods 
and  converted  them  to  his  own  use,  this  was  larcen}' ;  while  if  he 
induced  another  by  fraud  to  part  with  the  property  in  the  goods  as  well 
as  the  possession,  this  was  not  larceny. 

But  to  constitute  an  obtaining  by  false  pretences  it  is  equally  essen- 
tiatr'asTTn  larceny,  that  there  shall  be  an  intention  to  deprive  the 
owner  wholly  of  his  property,  and  this  intention  did  not  exist  in  the 
case  before  us.  In  support  of  the  conviction  the  case  of  Regiua  v. 
BouTton  was  referred  to.  There  the  prisoner  was  indicted  for  obtain- 
ing by  false  pretences  a  railway  ticket  with  intent  to  defraud  the  com- 
pany. It  was  held  that  the  prisoner  was  rightly  convicted,  though 
the  ticket  had  to  be  given  up  at  the  end  of  the  journey.  The  reasons 
for  this  decision  do  not  very  clearly  appear,  but  it  may  be  distin- 
guished from  the  present  case  in  this  respect,  — that  the  prisoner,  by 
using  the  ticket  for  the  purpose  of  travelling  on  the  railway,  entirely 
converted  it  to  his  own  use  for  the  only  purpose  for  which  it  was 
capable  of  being  applied.  In  this  case  the  prisoner  never  intended  to 
deprive  the  prosecutor  of  the  horse  or  the  property  in  it,  or  to  appro- 
priate it  to  himself,  but  only  intended  to  obtain  the  use  of  the  horse 
for  a  limited  time.     The  conviction  must  therefore  be  quashed. 

Conviction  quashed  J 

1  See  Reg.  v.  Watson,  7  Cox  C.  C.  364.  —Ed. 


752  REX   V.  ADAMS.  [CHAP.  I. 


KEX  V.   ADAMS. 
Crown  Case  Reserved.     1812. 

[Reported  Russell  ^-  Ryan,  225.] 

The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Lent 
Assizes  held  at  Taunton,  in  the  3'ear  1812,  for  a  grand  larceny  in 
stealing  u  hat,  stated  in  one  count  to  be  the  property  of  Robert  Beer 
and  in  another  count  to  be  the  property  of  John  Paul. 

The  substance  of  the  evidence  was,  that  the  prisoner  bought  a  hat 
of  Robert  Beer,  a  hat-maker  at  Ilminster.  That  on  the  18th  of  Janu- 
ary he  called  for  it,  and  was  told  it  would  be  got  ready  for  him  in  half 
an  hour,  but  he  could  not  have  it  without  paying  for  it. 

While  he  remained  with  Beer,  Beer  showed  him  a  hat  which  he  had 
made  for  one  John  Paul ;  the  prisoner  said  he  lived  next  door  to  him, 
and  asked  when  Paul  was  to  come  for  his  hat,  and  was  told  he  was  to 
come  that  afternoon  in  half  an  hour  or  an  hour.  He  then  went  away, 
saying  he  would  send  his  brother's  wife  for  his  own  hat. 

Soon  after  he  went  he  met  a  boy  to  whom  he  was  not  known.  The 
prisoner  asked  the  boy  if  he  was  going  to  Ilminster,  and  being  told 
that  he  was  going  thither,  he  asked  him  if  he  knew  Robert  Beer  there, 
telling  him  that  John  Paul  had  sent  him  to  Beer's  for  his  hat,  but 
added  that  as  he,  the  prisoner,  owed  Beer  for  a  hat  which  he  had  not 
money  to  pay  for,  he  did  not  like  to  go  himself,  and  therefore  desired 
the  boy  (promising  him  something  for  his  trouble)  to  take  the  message 
from  Paul  and  bring  Paul's  hat  to  him  the  prisoner  ;  he  also  told  him 
that  Paul  himself,  whom  he  described  by  his  person  and  a  peculiarity 
of  dress,  might  perhaps  be  at  Beer's,  and  if  he  was  the  boy  was  not  to 
go  in. 

The  prisoner  accompanied  him  part  of  the  way,  and  then  the  boy 
proceeded  to  Beer's,  where  he  delivered  his  message  and  received  the 
hat,  and  after  carrying  it  part  of  the  way  for  the  prisoner  by  his 
desire,  the  prisoner  received  it  from  him,  saying  he  would  take  it  him- 
self to  Paul. 

The  fraud  was  discovered  on  Paul's  calling  for  his  hat  at  Beer's, 
about  half  an  hour  after  the  boy  had  left  the  place  ;  and  the  prisoner 
was  found  with  the  hat  in  his  possession  and  apprehended. 

From  these  and  other  circumstances,  the  falsity  of  the  prisoner's 
representation  and  his  fraudulent  purpose  were  sufficiently  established  ; 
but  it  was  objected  on  the  part  of  the  prisoner  that  the  offence  was  not 
larceny,  and  that  the  indictment  should  have  been  upon  the  statute 
for  obtaining  goods  by  false  pretences. 

The  prisoner  was  convicted,  but  the  learned  judge  forbore  to  pasa 
sentence,  reserving  the  question  for  the  opinion  of  the  judges. 


SECT.  II.]  EEGINA  V.   ROBINSON.  753 

In  Easter  term,  25th  of  April,  1812,  all  the  judges  were  present 
(except  Lord  Elleuborough,  Mansfield,  C.  J.,  and  Lawrence,  J.),  when 
they  held  that  the  conviction  was  wrong  ;  that  it  was  not  larceny,  but 
obtaining  goods  under  a  false  pretence.^ 


SECTION   II. 

Property. 

REGINA  V.    ROBINSON. 

Crown  Case  Reserved.     1859. 

[Reported  Bell  C.  C.  34.] 

The  following  case  was  reserved  by  tlie  Recorder  of  Liverpool. 

The  prosecutor,  who  resided  at  Hartlepool,  was  the  owner  of  two 
dogs,  which  he  advertised  for  sale.  The  prisoner,  Samuel  Robinson, 
having  seen  the  advertisement,  made  application  to  the  prosecutor  to 
have  the  dogs  sent  to  him  at  Liverpool  on  trial,  falsely  pretending  that 
he  was  a  person  who  kept  a  man-servant.  By  this  pretence  the  prose- 
cutor was  induced  to  send  the  dogs  to  Liverpool,  and  the  prisoner 
there  obtained  possession  of  them  with  intent  to  defraud,  and  sold 
them  for  his  own  benefit.  The  dogs  were  Pointers,  useful  for  the 
pursuit  of  game,  and  of  the  value  of  £5  each. 

At  the  Liverpool  Borough  Sessions,  holden  in  December,  1858,  the 
prisoner  was  indicted,  convicted,  and  sentenced  to  seven  years  penal 
servitude,  under  the  statute  7  &  8  Gr.  IV.  c.  29,  s.  53. 

On  behalf  of  the  prisoner  a  question  was  reserved  and  is  now  sub- 
mitted for  the  consideration  of  the  justices  of  either  bench  and  barons 
of  the  Excliequer,  viz.,  whether  the  said  dogs  were  chattels  within  the 
meaning  of  the  said  section  of  the  statute,  and  whether  the  prisoner 
was  rightly  convicted. 

The  prisoner  remains  in  Liverpool  Borough  Gaol  under  the  sentence 
passed  at  Sessions. 

Gilbert  Henderson, 

Recorder  of  Liverpool. 

This  case  was  argued,  on  January  29,  1859,  before  Lord  Campbell, 
C.  J.,  Martin  B.,  Crowder,  J.,  Willes,  J.,  and  Watson,  B. 
Brett  appeared  for  the  Crown,  and  Littler  for  tlie  prisoner.^ 

1  Ace.  Reg.  V.  Butcher,  8  Cox  C.  C.  77;  People  v.  Johnson,  12  Johns.  292.  And 
see  Com.  v.  Jeffries,  7  All.  548.  See  the  judgment  of  Cleasby,  B  ,  in  Reg.  i'.  Middle- 
ton,  L.  R.  2  C.  C.  38,  ante.  As  to  the  title  to  property  obtained  by  false  pretences,  see 
Lindsay  v.  Cundy,  1  Q.  B.  D.  348,  2  Q.  B.  D.  96,  3  App.  Cas.459;  Bentley  y.Vilmont, 
12  App.  Cas.  47i.  — Ed. 

2  Arguments  of  counsel  are  omitted. 


75-t  PEOPLE    V.    THOMAS.  [CHAP.  X, 


Lowu  Campbell,  C.  J.  \It  is  admitted  that  dog-stealing  is  not 
larceuy  at  common  law,  and  a  specific  punishment  of  a  milder  charac- 
ter has  been  enacted  by  the  later  statute,  which  makes  the  offence 
a  misdemeanor.  That  being  so,  it  would  be  monstrous  to  say  tlu 
obtaining  a  dog  by  false  pretences  comes  within  the  statute  7  &  8  G. 
IV.  c.  29,  s.  53,  by  which  the  oflfender  is  liable  to  seven  years  penal^ 
servitude.  My  brother  Coleridge  used  to  say  that  no  indictment 
would  lie  under  that  section  uuless,  if  the  facts  justified  it,  the  pris- 
oner could  be  indicted  for  larceny,  and  that  is  now  my  opinion. 

Martin,  B.  I  think  this  conviction  cannot  be  sustained.  The 
question  is  one  entirely  of  the  construction  of  the  statute. 

AViLLES,  J.  From  the  Year  Books  downwards,  including  the  case 
of  Swans,  7  Rep.  15  b,  dogs  have  always  been  held  not  to  be  the  sub- 
ject of  larceny  at  common  law. 

The  other  learned  judges  concurred. 


Conviction  quashed.^ 


^ 


PEOPLE   V.   THOMAS. 
Supreme  Court  of  New  York.     1842. 


[Reported  3  Hill,  169.] 

Certiorari  to  the  Oneida  General  Sessions,  where  Thomas  was  con- 
victed of  obtaining  money  by  false  pretences,  of  one  Joues.J  The  case 
turned  upon  tlie  sufficiency  of  the  indictment,  which  charged  substan- 
tially the  following  facts  :  Jones,  having  executed  his  negotiable  note 
to  Thomas  for  $28.28,  dated  the  19th  of  February,  1838,  and  payable 
one  day  after  date,  the  latter,  in  March  afterward,  called  for  payment, 
falsely  pretending  to  Jones  that  the  note  had  either  been  lost  or 
burned  up  ;  by  which  false  pretences  Thomas  unlawfully,  etc.,  obtained 
from  Jones  the  sum  of  $28.28,  with  intent  to  cheat  and  defraud  Jones  ; 
whereas  in  truth,  etc.,  the  note  had  not  been  lost  or  burned  up,  all 
which  the  said  Thomas,  when  he  made  the  false  pretence  and  obtained 
the  money,  well  knew,  etc. 

Evidence  was  given,  at  the  trial,  of  the  above  facts  ;  and  also,  that 
in  jNIarch,  1840,  Thomas  negotiated  the  note,  for  value,  to  one  Anson 
Shove,  without  apprizing  the  latter  that  it  had  been  paid.  The  court 
below  instructed  the  jury  that  the  proof  was  sufficient  to  convict ;  to 
which  the  defendant's  counsel  excepted.  A  verdict  was  rendered, 
finding  the  defendant  guilty. 

0.  Tracy,  for  the  defendant. 

T.  Jenkins  (district  attorney),  contra. 

Per  Curiam.  Non  constat  from  the  indictment,  that  Jones  sus- 
tained any  damage  by  the  false  representation  ;  nor  that  there  was  aa 

1  Ace.  State  v.  Barrows,  11  Ire.  477.  —  Ed. 


SECT.  II.J  STATE   V.    BLA.CK,  755 

intent  on  the  part  of  Thomas,  at  the  time  of  the  representation,  to 
work  any  damage.  The  note  was  due  ;  and  payment  made.  This 
was  the  only  consequence  —  a  thing  which  Jones  was  bound  to  do. 
A  false  representation,  by  which  a  man  may  be  cheated  into  his  duty, 
is  not  wdthiu  the  statute,  it  was  said  in  argument  that  the  subsequent 
negotiation  of  the  note  by  Thomas  obviated  the  difficulties  adverted 
to.  The  note  being  over  due  when  the  latter  fact  took  place^^jt  is 
difficult  to  see  judicially,  that  Jones  would  be  injured  by  it.  Whether 
he  would  or  would  not,  is  merely  speculative,  depending  on  his  pre- 
caution in  providing  himself  with  proper  evidence.  It  is  enough, 
however,  to  say  that  the  indictment  does  not  charge  the  subsequent 
act  of  negotiation  as  entering  into  the  defendant's  design  when  he 
made  the  representation;  nor  is  the  act  itself  even  mentioned. 

New  trial  ordered? 


STATE   V.   BLACK. 
Supreme  Court  of  Wisconsin.     1890. 

[Reported  75  Wisconsm,  490.] 

Cassodat,  J.==  Sec.  442.3,  R.  S.,  punishes  the  obtaining  of  property 
or  a  signature  under  the  circumstances  therein  mentioned.  The  ques- 
tion here  presented  relates  entirely  to  the  obtaining  of  property.  So 
much  of  that  section  as  pertains  to  that  question  reads  :  "  Any  person 
who  shall  designedly^  by  any  false  pretense,  or  by  any  privy  or  false 
token,  and  ivith  intent  fq,  defraud,  obtain  from  any  other  person  any 
money,  goods,  wares,  merchandise,  or  other  property,  .  .  .  shall  be 
punished,"  etc.  To  sustain  a  conviction  under  this  section  four  things 
must  concur.  It  sufficiently  appears  from  the  record  that  three  of 
those  things  co-existed  in  the  case  at  bar,  — that  is  to  say  it  sufficiently 
appears  that  the  defendant  (1)  "  designedly,"  (2)  by  means  of  the 
false  pretense  mentioned,  (3)  "  and  with  intent  to  defraud,"  obtained 
the  board  and  lodging  mentioned.  The  only  question,  therefore, 
requiring  consideration  here  is  whether  the  obtaining  of  such  board 
and  lodging  was,  in  legal  effect,~lhe  obtaining  of  "money,  goods, 
wares,  mercliandise,  or  other  property  "  within  the  meaning  of  the 
section. 

From  the  very  wording  of  the  statute  it  is  manifest  that  no  complete 
offense  can  be  committed  under  it  until  the  "  money,  goods,  wares, 
merchandise,  or  other  property,"  is  actually  obtained  by  the  offender. 
This  being  so,  it  is  equally  obvious  that  if  the  statute  applies  to  the 
obtaining  of  board  and  lodging,  then  each  meal  of  board  obtained 
constitutes  a  separate  offense ;  and  the  same  would  be  true  of  each 

1  Ace.  In  re  Cameron,  44  Kas.  64 ;  Com.  v.  McDuffj,  12G  Mass.  467.  — Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case. 


756  STATE    V.    BLACK.  fCHAP.  X. 

night's  lodging.  If  the  section  applies  to  board  and  lodging,  then, 
for  the  same  reason,  it  would  apply  to  almost  any  service  or  use. 
Another  serious  ditiiculty  with  such  application  in  the  case  at  bar  is 
the  absence  from  the  record  of  any  certain  and  definite  description  of 
the  property  actually  obtained.  Many  of  the  authorities  hold  that  in 
the  information  or  indictment  in  such  cases,  "  the  property  should  be 
described  with  as  much  accuracy  and  particularity  as  in  indictments 
for  larceny."  State  c.  Kube,  20  Wis.  225  ;  s.  c.  91  Am.  Dec.  395. 
Where  the  description  of  the  property  is  uncertain,  the  defect  is  fatal. 
Ibid.  We  are  to  remember  that  it  is  a  criminal  statute  we  are  con- 
struing. It  should  not  be  so  construed  as  to  multiply  crimes,  unless 
required  by  the  context.  The  word  "property"  is,  in  many  cases, 
construed  to  include  "  things  in  action  and  evidences  of  debt."  Subd. 
3,  4,  sec.  4972,  R.  S.  But  the_\vords  "  other  property,"  in  the  statute 
quoted,  must,  under  the  familiar  rule,  noscitur  a  sociis,  be  limited  to 
such  tangible  classes  of  property  as  are  therein  previously  enumerated  ; 
that  is  to  say,  "  money,  goods,  wares,  merchandise,  and  other  prop- 
erty "  of  that  description.  This  rule  has  frequently  been  applied  by 
this  court,  especially  to  penal  statutes.  Jensen  v.  State,  60  Wis. 
582,  and  cases  there  cited.  See,  also,  Gibson  v.  Gibson,  43  Wis.  33  ; 
Estate  of  Kirkendall,  43  Wis.  179  ;  Kelley  v.  Madison,  43  Wis.  645. 

The  principle  governing  the  case  at  bar  is  somewhat  similar  to  that 
involved  in  People  v.  Haynes,  14  Wend.  546  ;  s.  c.  28  Am.  Dec.  530. 
In  that  case  merchandise  was  purchased,  and  placed  by  the  seller  in  a 
box,  marked  with  the  buyer's  name  and  address,  and  delivered  to  the 
carrier  named  by  the  purchaser,  to  be  delivered  at  his  residence  ;  but 
the  seller,  before  delivering  the  shipper's  receipt  and  invoice,  having 
learned  that  the  purchaser  was  embarrassed,  asked  him  in  regard 
thereto,  whereupon  the  buyer  made  false  and  fraudulent  represen- 
tations as  to  his  condition,  and,  in  consequence  thereof,  the  seller 
delivered  to  the  buyer  the  shipper's  receipt  and  invoice,  and  did  not 
stop  the  goods  in  transitu ;  and  it  was  held  that  the  buyer  was  not 
criminally  liable  for  obtaining  the  goods  by  false  pretenses,  since  the 
goods  were  in  law  obtained  when  they  were  delivered  to  the  carrier, 
which  was  before  the  false  pretenses  were  made. 

The  construction  of  the  statute  indicated  has  additional  force  from 
the  fact  that  the  same  section  punishes  the  obtaining  by  false  pretenses 
of  a  signature  to  a  written  instrument,  the  false  making  whereof  would 
be  punishable  as  forgery.  Sec.  4423,  R.  S.  This  clearly  covers  some 
"  things  in  action  and  evidences  of  debt,"  and  by  necessary  implica- 
tion excludes  others,  as,  for  instance,  a  mere  credit,  as  here.__We^ 
must  hold  that  the  words  "or  other  property"  do  not  include  the 
vnere  obtaining  of  board  and  lodging  under  the  circumstances  stated. 

The  result  is  that  the  first  question  propounded  is  answered  in  the 
negative.     This  renders  it  unnecessary  to  answer  the  second  question 

By  the  Court.  Ordered  accordingly} 

1  Ace.  Reg.  V.  Gardner.  7  Cox  C.  C.  136.  — Ed. 


SECT.  III.]  EEX    V.   GOODHALL.  757 

SECTION   III. 

The  Pretence. 

REX  V.   GOODHALL. 
Crown  Case  Reserved.     1821. 

[Reported  Russell  ^-  Ryan,  461.] 

The  prisoner  was  tried  before  Mr.  Baron  Garrow,  at  the  Stafford 
summer  Assizes,  in  the  year  1821,  on  an  indictment,  charging  tliat  he, 
being  an  ill-designing  person,  and  a  common  cheat,  and  intending  to 
cheat  and  defraud  one  Thomas  Perks,  of  his  goods,  wares,  and  mer- 
chandizes, on  the  17th  of  August,  1821,  at  the  parish  of  Wolverhamp-        y\j^ 

ton  ;  unlawfully,  knowingly,  and  designedly,  did  falsely  pretend  that      . 

if  he,  the  said  Thomas  Perks,  would  sell  to  him,  the  prisoner,  the  car-  / 
cases  of  three  sheep  and  two  legs  of  veal,  and  send  the  same  to  him 
at  Blonwick,  he,  the  said  prisoner,  would  pay  for  the  same  on  delivery, 
and  send  the  money  back  by  the  servant  of  the  said  Thomas  Perks  ; 
by  which  said  false  pretences,  he,  the  said  prisoner,  did  obtain  from 
the  said  Thomas  Perks  two  hundred  and  twenty  pounds  weight  of 
mutton,  value  £4,  and  thirty  pounds  weight  of  veal,  value  10s.,  his 
property,  with  intent  to  cheat  him  of  the  same.  Whereas,  in  truth 
and  in  fact,  the  said  prisoner  did  not,  at  the  time  of  buying  the  said 
carcases  and  legs  of  veal,  intend  to  pay  for  the  same  on  delivery. 
And  whereas,  in  truth  and  in  fact,  the  said  prisoner  did  not  pay  for 
the  same  on  delivery.  And  whereas,  in  truth  and  in  fact,  the  said 
prisoner  did  not  send  the  money  for  the  same  back  by  the  servant  of 
him  the  said  Thomas  Perks,  against  the  form  of  the  statute,  &c.  --, 

It  appeared  in  evidence,  that  the  prosecutor,  Thomas  Perks,  was  a 
butcher  at  Wolverhampton;  and  that,  on  the  17th  of  August,  1821, 
the  prisoner  came  to  his  shop  to  purcliase  three  sheep  and  two  legs  of 
veal ;  on  being  told  by  the  prosecutor  that  he  would  not  trust  him,  he  / 

promised  the  prosecutor,  if  he  would  send  the  sheep  and  veal  in  good 
time  on  the  following  morning,  he  would  remit  the  money  back  by  the 
bearer. 

The  meat  was  accordingly  sent  on  the  18th  of  August,  by  the  prose- 
cutor, and  delivered  to  the  prisoner  by  the  prosecutor's  servant,  who 
asked  him  for  the  money  ;  and  said,  if  he  did  not  give  it  him,  he  must 
take  the  meat  back  again.  The  prisoner  replied,  "Aye,  sure!"  and 
wrote  a  note  ;  and  told  the  prosecutor's  servant  to  take  it  to  his  mas- 
ter, and  it  would  satisfy  him.  The  note  (of  which  the  following  is  a 
copy)  was  delivered  to  the  prosecutor  by  his  servant :  — 

"  Mr.  Perks,  Sir,  I  have  a  bill  of  Walsall  bank,  which  is  a  very 
good  one,  if  you  will  send  me  the  change,  or  I  '11  see  you  on  Wednesday 
certain."  "  Your's,  M.  G." 


758  EEX    V.    WAKELINCr.  [CHAP.  X. 

The  jury  found  the  prisoner  guilty  ;  and  said  they  were  of  opinion, 
that  at  the  time  the  prisoner  applied  to  Perks,  he  knew  Perks  would 
not  part  with  tlie  meat  without  the  money  ;  and  that  he  promised  to 
send  back  the  money  to  obtain  the  goods.  The  jury  also  found,  that 
at  the  time  he  applied  for  the  meat,  and  promised  to  send  back  the 
money,  he  did  not  intend  to  return  the  money  ;  but  by  that  means  to 
obtain  the  meat,  and  cheat  the  prosecutor. 

The  learned  judge  respited  the  judgment,  making  an  order  that  the 
prisoner  might  be  delivered,  on  finding  bail,  to  appear  at  the  then  next 
Assizes. 

In  Michaelmas  term,  1821,  the  judges  met  and  considered  this  case. 
They  held  the  conviction  wrong  ;  being  of  opinion,  that  was  not  a  pre- 
tence within  the  meaning  of  the  statute.  It  was  merely  a  promise  for 
future  conduct,  and  common  prudence  and  caution  would  have  pre- 
vented any  injury  arising  from  the  breach  of  it.^ 


REX   V.   WAKELING. 
Crown  Case  Reserved.     1823. 

[Reported  Russell  ^-  Ryan,  504.] 

The  prisoner  was  convicted  before  Mr.  Justice  Baj^ley,  at  the  gaol 
delivery  for  the  county  of  Essex,  in  January,  1823,  for  obtaining  a 
pair  of  shoes  from  Thomas  Poole,  the  overseer  of  the  poor  of  the 
parish  of  Great  Wlieltham,  from  which  parish  the  prisoner  received 
parochial  relief,  by  falsely  pretending  that  he  could  not  go  to  work 
because  he  had  no  shoes,  when  he  had  really  a  sufficient  pair  of  shoes. 

It  appeared  in  evidence  that  the  prisoner  and  his  family  received 
relief  from  the  parish  ;  that  Poole,  the  overseer,  bid  the  prisoner  go  to 
work  to  help  to  maintain  his  family  ;  that  the  prisoner  said  he  could 
not  because  he  had  no  shoes ;  that  Poole,  the  overseer,  thereupon 
supplied  him  with  a  pair  of  the  value  of  ten  shillings,  and  that  the 
prisoner  had,  in  fact,  at  the  time,  two  pair  of  new  shoes,  which  he  had 
previously  received  from  tlie  parish. 

The  learned  judge  doubted  whether  tliis  was  a  case  within  the 
statute,  and  thought  it  right  to  lay  it  before  the  judges  for  their  con- 
sideration. 

In  Hilary  term,  1823,  this  case  was  considered  by  the  judges,  who 
held  that  it  was  not  within  the  act,  and  that  the  conviction  was 
wrong ;  the  statement  made  by  the  prisoner  being  rather  a  false 
excuse  for  not  working  than  a  false  pretence  to  obtain  goods.^ 

1  Ace.  Reg.  V.  Lee,  9  Cox  C.  C.  304;  State  v.  Colly,  39  La.  Ann.  841  ;  State  v. 
Be  Lay,  93  Mo.  98.  See  Reg.  v.  Jones,  6  Cox  C.  C.  467 ;  State  v.  Sarony,  95  Mo; 
349.  —  Ed. 

2  Ace.  Reg.  V.  Stone,  1  F.  &  F.  311.  —Ed. 


SECT.  III.]  REGINA   V.    MILLS.  759 


REX  V.   BARNARD. 
Oxford  Assizes.     1837. 

[Reported  7  Carrington  ^-  Payne,  784.] 

False  pretences.  The  indictment  charged  that  the  prisoner  falsely 
pretended  that  he  was  an  under-graduate  of  the  University  of  Oxford, 
and  a  commoner  of  Magdalen  College,  by  means  of  which  he  obtained 
a  pair  of  boot-straps  from  John  Samuel  V^incent. 

It  appeared  that  Mr.  Vincent  was  a  boot-maker,  carrying  on  business 
in  High  Street,  Oxford ;  and  that  the  prisoner  came  there,  wearing  a 
commoner's  cap  and  gown,  and  ordered  boots,  which  were  not  supplied 
him,  and  straps,  which  were  sent  to  him.  He  stated  he  belonged  to 
Magdalen  College. 

It  was  proved  by  one  of  the  butlers  of  Magdalen  College  that  the 
prisoner  did  not  belong  to  that  college,  and  that  there  are  no  common- 
ers at  Magdalen  College. 

BoLLAND,  B.  (in  summing  up).  If  nothing  had  passed  in  words,  I 
should  have  laid  down  that  the  fact  of  the  prisoner's  appearing  in  the 
cap  and  gown  would  have  been  pregnant  evidence  from  which  a  jury 
should  infer  that  he  pretended  he  was  a  member  of  the  university,  and 
if  so,  would  have  been  a  sufficient  false  pretence  to  satisfy  the  statute. 
It  clearly  is  so  by  analogy  to  the  cases  in  which  offering  in  payment 
the  notes  of  a  bank  which  has  failed,  knowing  them  to  be  so,  has  been 
held  to  be  a  false  pretence  without  any  words  being  used. 

Verdict^  Guilty.^ 


/' 


REGINA  V.  MILLS. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  263.] 

At  the  General  Quarter  Sessions  of  the  Peace  holden  for  the  county 
of  Cambridge,  on  the  9th  January,  1857,  William  Mills  was 'tried  and 
convicted  upon  the  following  indictment  for  obtaining  money  under 
false  pretences. 

The  jurors  for  our  Lady  the  Queen  upon  their  oath  present,  that 
William  Mills,  on  the  14th  day  of  November,  1856,  did  falsely 
pretend  to   one  Samuel    Free    that  the   said  William  Mills  had  cut 

1  Ace.  Rex  V.  Douglass,  7  C.  &  P.  785  n. ;  Reg.  v.  Hunter,  10  Cox  C.  C.  642 ;  Reg. 
V.  Bull,  13  Cox  C.  C.  608;  Reg.  v.  Sampson,  52  L.  T.  772;  Reg.  v.  Randell,  16  Cox 
C.  C.  335  .—  Ed. 


760  REGINA   V.   AyLLS.  [CHAP.  X. 

sixty-three  fans  of  chaff  for  him  the  said  Samuel  Free,  by  which  said 
false  pretence  the  said  William  Mills  then  unlawfully  did  obtain 
from  the  said  Samuel  Free  certain  money  of  him  the  said  Samuel 
Free,  with  intent  to  defraud.  Whereas,  in  truth  and  in  fact,  tlie 
said  William  Mills  had  not  cut  sixty-three  fans  of  chaff,  as  the 
said  William  Mills  did  then  so  falsely  pretend  to  the  said  Samuel 
Free,  but  a  mucli  smaller  quantity,  to  wit,  forty-five  fans  of  chaff. 
And  the  said  William  Mills,  at  the  time  he  so  falsely  pretended  as 
aforesaid,  well  knew  the  said  pretence  to  be  false,  against  the  form  of 
the  statute,  &c.  It  appeared  from  the  evidence  that  the  prisoner  was 
employed  to  cut  chaff  for  the  prosecutor,  and  was  to  be  paid  twopence 
per  fan  for  as  much  as  he  cut.  He  made  a  demand  for  10s.  6d.,  and 
stated  he  liad  cut  sixty-three  fans,  but  the  prosecutor  and  another  wit- 
ness had  seen  the  prisoner  remove  eighteen  fans  of  cut  chaff  from  an 
adjoining  chaft'-house,  and  add  them  to  the  heap  which  he  pretended 
he  had  cut,  thus  making  the  sixty-three  fans  for  which  he  charged. 
Upon  the  representation  that  he  had  cut  sixty-three  fans  of  chaff,  and 
notvvitlistanding  his  knowledge  of  the  prisoner  having  added  the  eigh- 
teen fans,  the  piosecutor  paid  him  tlie  10s.  6d.,  being  3s.  more  than 
the  prisoner  was  entitled  to  for  the  work  actually  performed.  It  was 
objected  on  behalf  of  the  prisoner,  first,  that  this  was  simply  an  over- 
charge, as  in  the  case  of  R.  v.  Oates,  6  Cox  Crim.  Cas.  540  ;  and  sec- 
ondly, that  as  the  prosecutor  at  the  time  he  parted  with  his  moue^'  knew 
tlie  facts,  the  prisoner  could  not  be  said  to  have  obtained  the  money 
by  the  false  pretence.  Judgment  was  postponed,  and  the  prisoner 
was  discharged  upon  recognizances  to  appear  at  the  next  Quarter 
Sessions.  The  opinion  of  the  Court  of  Criminal  Appeal  is  requested 
whether  the  prisoner  was  rightly  convicted  of  misdemeanor  under  the 
foregoing  indictment. 

No  counsel  was  instructed  for  the  prisoner. 

Orridge,  for  the  Crown.  Although  the  prosecutor  knew  that  the 
representation  was  false,  and  permitted  the  prisoner  to  complete  the 
offence  by  receiving  the  money,  that  does  not  render  tlie  offence  less 
in  him.  In  larceny  the  same  doctrine  is  established,  R.  v.  Eggington, 
2  B.  «fe  P.  508.  [CocKBURN,  C.  J.  There  the  prosecutor  remains 
passive.  Willes,  J.  Invito  domino  is  held  to  mean  without  leave.] 
In  R.  V.  Adey,  7  C.  &  P.  140,  it  was  said  to  be  no  answer  that  the 
prosecutor  had  laid  a  plan  to  entrap  the  prisoner  into  the  commission 
of  the  offence. 

CocKBURN,  C.  J.  The  question  in  these  cases  is,  whether  the  false 
representation  is  the  immediate  motive  operating  on  the  mind  of  the 
prosecutor,  and  inducing  him  to  part  with  his  money.  It  cannot  be 
said  that  that  was  the  case  here,  because  he  paid  the  money  although 
he  knew  the  representation  to  be  false.  Unless  the  money  be  obtained 
hy  the  false  pretence,  it  is  an  attempt  only. 

Coleridge,  J.  In  R.  v.  Adey  the  prosecutor  did  part  with  his 
money  in  consequence  of  the  false  pretence. 


SECT,  III.]  REGINA   V.    BUYAN.                                               761 

Br  AM  WELL,  B.  I  do  not  think  he  could  recover  back  the  money  in 
a  civil  action. 

WiLLES,  J.     Because  it  was  paid  voluntarily  with  a  knowledge  of 

all  the  circumstances.  Conviction  quashed.^ 


REGINA  V.  BRYAN. 
Crown  Case  Reserved.     1857. 

[Reported  7  Cox  C.  C.  312.] 

The  following  case  was  reserved  by  the  Recorder  of  London  at  the 
Central  Criminal  Court :  — 

It  was  partly  argued  before  five  of  the  learned  judges  on  a  former 
day,  but  on  account  of  the  importance  of  the  question  raised  in  this  as 
well  as  in  Reg.  v.  Sherwood,  7  Cox  C.  C.  270,  they  were  both  ordered 
to  be  reargued  before  all  the  judges. 

CASK. 

At  tlie  session  of  jail  delivery  holden  for  the  jurisdiction  of  the 
Central  Criminal  Court  on  the  second  day  of  February,  1857,  John 
Bryan  was  tried  before  me  for  obtaining  money  by  false  pretences. 
There  were  sevei'al  false  pretences  charged  in  the  different  counts  of 
the  indictment,  to  which,  as  he  was  not  found  guilty  of  them  by  the 
jury,  it  is  not  necessary  to  refer.  But  the  following  pretences  were, 
among  others,  charged  :  — 

That  certain  spoons  produced  by  the  prisoner  were  of  the  best 
quality  ;  that  they  were  equal  to  Elkington's  A  (meaning  spoons  and 
forks  made  by  Messrs.  Elkington,  and  stamped  by  them  with  the  let- 
ter A) ;  that  the  foundation  was  of  the  best  material ;  and  that  they 
had  as  much  silver  upon  them  as  Elkington's  A.  The  prosecutors 
were  pawnbrokers,  and  the  false  pretences  were  made  use  of  by  the 
prisoner  for  the  purpose  of  procuring  advances  of  money  on  the  spoons 
in  question,  offered  by  the  prisoner  by  way  of  pledge,  and  he  thereby 
obtained  the  moneys  mentioned  in  the  indictment  by  way  of  such  ad- 
vances. The  goods  were  of  inferior  quality  to  that  represented  by  the 
prisoner,  and  the  prosecutors  said  that  had  they  known  the  real  quality 
they  would  not  have  advanced  money  upon  the  goods  at  any  price. 
They  moreover  admitted  that  it  was  the  declaration  of  the  prisoner  as 
to  the  quality  of  the  goods,  and  nothing  else,  which  induced  them  to 
make  the  said  advances.  The  money  advanced  exceeded  the  value  of 
the  spoons.  The  jury  found  the  prisoner  guilty  of  fraudulently  repre- 
senting that  the  goods  had  as  much  silver  on  them  as  Elkington's  A, 
and  that  the  foundations  were  of  the  best  material,  knowing  that  to 

1  Ace.  Res.  V.  Jones,  15  Cox  C.  C.  475.    See  Reg.  v.  Hensler,  11  Cox  C.  C.  570.  —  En 


762  REGINA   V.    BRYAN.  [CHAP.  X. 

be  untrue,  and  that  in  consequence  of  that  he  obtained  the  moneys 
mentioned  in  the  indictment.  The  prisoner's  counsel  claimed  to  have 
the  verdict  entered  as  a  verdict  of  "  not  guilty,"  which  was  resisted 
by  the  counsel  for  the  prosecution,  and  entertaining  doubts  upon  the 
question,  I  directed  a  verdict  of  guilty  to  be  entered,  in  order  that 
tlie  judgment  of  the  Court  of  Criminal  Appeal  might  be  taken  in  tlie 
matter,  and  the  foregoing  is  the  case  on  which  that  judgment  is 
requested.  Russell  Gurney. 

£.  C.  Robinson,  for  the  prisoner,  submitted  that  these  were  not  false 
pretences  within  the  statute.  That  the  rule  to  be  deduced  from  all 
the  cases  was  this,  that  where  the  thing  obtained  was  in  specie  that 
which  it  was  represented  to  be,  the  statute  applied ;  but  where  the 
falsehood  was  merely  as  to  the  quality  of  the  thing,  where  it  became  a 
mere  question  of  better  or  worse,  such  pretence  was  -not  indictable. 
Here  the  goods  were  in  specie  what  they  were  represented  to  be  ;  they 
were  plated  goods,  but  they  were  inferior  in  quality  to  the  representa- 
tion. If  it  were  otherwise,  and  that  the  puffing  or  vaunting  an  article 
•that  was  offered  for  sale  was  a  criminal  offence,  every  trader  in  the 
commercial  world  would  be  committing  a  crime  twenty  times  in  the 
course  of  each  day.  In  R.  v.  Roebuck,  7  Cox  Crim.  Cas.  126,  most 
of  the  learned  judges  in  delivering  their  judgment  stated  that  but  for 
the  case  of  R.  r.  Abbott,  1  Den.  C.  C.  173,  they  should  have  hesitated 
in  lioldiug  the  conviction  to  be  proper,  but  that  they  felt  bound  by 
that  authority.  If  then  it  could  be  shown  that  the  present  case,  if 
the  conviction  were  to  be  sustained,  would  go  further  than  those  above 
mentioned,  the  court  would  not  confirm  it.  Every  decision  might  be 
reconciled  with  the  principle  contended  for.  In  R.  r.  Roebuck,  the 
chain  pawned  for  silver  was  not  silver  at  all.  So  with  regard  to  the 
thimble  in  R.  v.  Ball,  C.  &  M.  249.  In  R.  v.  Dundas,  6  Cox  Crim.  Cas. 
380,  the  article  sold  was  stated  to  be  Everett's  blacking  ;  it  was  bought 
on  the  faith  of  its  being  so,  and  it  turned  out  to  be  a  spurious  com- 
pound. There  it  was  not  a  mere  representation  of  quality,  but  of  a 
specific  thing  known  as  Everett's  blacking. 

Lord  Campbell.  Was  not  R.  v,  Abbott  decided  on  a  pretence  with 
regard  to  the  quality  of  a  cheese  ? 

Rohinson.  No.  If  the  representation  alleged  in  the  indictment 
had  been  that  the  cheese  was  of  the  same  quality  as  the  taster,  that 
would  have  rendered  the  case  analogous  to  this.  But  it  was  not  so. 
The  representation  there  was  that  the  taster  formed  part  and  parcel 
of  the  cheese  to  be  sold,  and  it  was  in  truth  of  a  totally  different  char- 
acter, inserted  into  the  bulk  for  the  purposes  of  fraud.  That  was 
a  statement  of  a  specific  fact  quite  independent  of  the  quality. 
The  cheese  might  have  been  of  even  better  quality  than  the  taster, 
and  yet  the  falsehood  of  the  pretence  would  equally  exist.  If  the 
misrepresentation  here  had  been  that  the  spoons  were  of  Elking- 
<^on's   manufacture,  and  had  formed  part  of  Elkington's  stock,  then 


SECT.  III.]  REGINA    V.    BRYAN.  763 

the  case  would  be  identical  with  R.  r.  Abbott ;  but  there  is  a  wide 
distinction  between  the  statements  that  they  are  P^lkiugton's  and  that 
they  are  as  good  as  Elkington's. 

Coleridge,  J.  If  the  seller  is  to  be  indictable  for  overpraising  his 
goods,  tiien  the  buyer  would  be  indictable  also  for  unfairly  depreciat- 
ing them,  and  thus  obtaining  them  below  their  value. 

Lord  Campbell.  That  would  certainly  seem  to  be  so.  Even  the 
act  of  depreciating  would  be  indictable,  because  it  would  be  an  attempt 
to  obtain  them  by  a  false  pretence  as  to  their  quality. 

liohinson.  In  the  administration  of  the  criminal  law,  it  is  of  the 
highest  importance  to  define  as  accurately  as  may  be  what  crime  is, 
and  not  to  leave  too  much  to  the  interpretation  of  juries.  Otherwise, 
in  such  a  case  as  this,  every  man  who  was  dissatisfied  with  a  bargain 
he  had  made  would  have  it  in  his  power  to  indict  a  tradesman  w^ho 
sold  him  goods,  on  the  plea  that  every  representation  made  in  the 
course  of  the  bargain  was  not  true  to  the  letter.  A  cutler  who  war- 
ranted a  knife  to  be  as  good  as  Rodger's,  a  tailor  who  stated  a  coat 
to  be  of  the  best  Saxony  wool,  a  brewer  who  represented  his  beer  to 
be  treble  X,  would  be  constantly  amenable  to  the  criminal  law,  and  a 
jury  would  have  to  decide  upon  their  fate.  A  line  must  be  drawn 
somewhere,  and  to  hold  that  a  pretence  to  be  within  the  statute  must 
be  with  reference  to  some  clear  specific  fact,  the  truth  or  falsehood  of 
which  may  be  demonstrably  shown,  the  assertion  and  the  fact  being 
each  the  contradictory  of  the  other,  is  consistent  both  with  conveni- 
ence and  authority,  whilst  it  would  be  highly  dangerous  to  hold  that 
statements  which  might  be  mere  matters  of  opinion  or  speculation 
were  the  subject-matters  of  a  criminal  charge. 

Lord  Campbell.     You  say  it  is  lawful  to  lie  in  respect  of  quality. 

Robinson.  However  immoral,  that  it  is  not  a  crime.  At  the  outset 
it  must  be  admitted  that  this  was  a  wilful  lie.  The  case  states  it,  and 
the  jury  have  so  found  it.  It  must  also  be  admitted  that  in  conse- 
quence of  the  lie  the  money  was  obtained.  It  is  only  on  such  admis- 
sions that  the  point  can  ever  arise.  The  question  is,  is  such  a  lie  as 
this  a  false  pretence  within  the  statute  ? 

Lord  Campbell.  But  it  is  part  of  the  allegation  that  there  is  as 
much  silver  in  the  spoons  as  in  Elkington's  A.  Is  not  that  the  asser- 
tion of  a  fact  "^ 

Rohiiisoii.  It  is  no  more  in  reality  than  a  representation  of  the 
quality.  It  is  the  amount  of  silver  in  these  goods  that  gives  them 
their  value,  and  saying  of  them  that  they  have  more  or  less  silver  is 
equivalent  to  saying  that  they  are  of  better  or  worse  quality. 

Pollock,  C.  B.  Suppose  a  seller  of  clieese  to  state  that  it  came 
from  a  particular  dairy  in  Cheshire,  when  in  fact  it  came  from 
America. 

Robinson.  That  might  probably  be  a  false  pretence,  because  the 
buyer  would  not  get  the  precise  thing  he  bargained  for.     He  might 


764  EEGINA   V.    BEYAN.  [CHAP.  X. 

want  a  Cheshire  cheese  and  not  an  American  one,  quite  irrespective  of 
the  quality. 

Bramwell,  B.  I  see  nothing  in  the  statute  that  recognizes  a  dis- 
tinction between  species  and  quality. 

Rohinson.  The  statute  must  be  taken  in  connection  with  the  many 
cases  that  have  been  decided  upon  it,  and  which  have  given  it  a  par- 
ticular interpretation. 

Bramwell,  B.  If  I  buy  a  spurious  autograph  of  the  Duke  of  Wel- 
lington, or  a  spurious  picture  attributed  to  Kaphael,  I  get  a  thing  of 
the  same  species  as  that  bargained  for. 

Rohinson.  If  the  autograph  or  the  picture  was  represented  to  be 
genuine  when  it  was  known  to  be  spurious,  that  would  probably  be  a 
false  pretence  ;  but  if  it  was  said  that  the  writing  or  the  painting  was 
in  the  duke's  or  the  painter's  best  style,  and  it  was  known  to  be  other- 
wise, it  would  not  be  so.  There  are  cases  which  tend  to  show  that 
the  doctrine  of  caveat  erii2-)tor  might  be  applicable  here,  or  that  false 
representations  as  to  specific  facts  in  the  course  of  a  bargain  and  sale 
are  not  within  the  statute,  but  still  much  doubt  has  of  late  been  thrown 
upon  them,  and  it  is  not  thought  necessary  to  rely  upon  them  here. 

Francis  (with  him  Metcalfe),  for  the  prosecution.  The  false  pre- 
tences relied  upon  are  as  to  the  quantity  of  silver  in  the  spoons  being 
equal  to  Elkiugton's  A,  and  the  foundations  being  of  the  best  material. 
These  are  facts  easily  ascertainable,  and  which,  in  truth,  the  jury 
have  expressed  their  judgment  upon.  They  are  not  mere  statements 
that  the  spoons  are  as  good  or  as  valuable  as  Elkington's.  It  is  some- 
thing more  than  a  mere  representation  with  regard  to  quality ;  for  it 
must  be  taken,  after  the  finding  of  the  jury,  that  the  amount  of  silver 
on  Elkington's  A  spoons  was  a  well  known  fixed  quantity.  In  the 
case  of  R.  v.  Sherwood,  just  decided,  it  was  held  that  a  misrepre- 
sentation with  regard  to  quantity  was  a  good  false  pretence  within  the 
statute,  and  there  is  here  just  as  strong  a  representation  as  to  quantity 
as  there  was  there.  The  spoons,  no  doubt,  had  a  small  quantity  of 
silver  upon  them,  but  it  was  so  trifling  that  the  money  advanced  ex- 
ceeded their  full  value,  and  it  is  found  that  had  the  prosecutors  known 
the  real  value  they  would  not  have  advanced  any  money  upon  them 
whatever.  But  there  is  no  case  laying  down  the  principle  contended 
for  on  the  other  side,  that  a  misrepresentation  with  regard  to  quality 
is  not  within  the  statute  ;  on  the  contrary,  in  R.  v.  Kenrick,  5  Q.  B. 
49,  one  of  the  pretences  was,  that  a  horse  was  quiet  to  ride  and  drive, 
which  was  false  within  the  seller's  knowledge,  and  the  court  sustained 
the  conviction.  The  words  of  the  statute  are  clear  and  precise,  that 
goods  obtained  by  any  false  pretence  constitutes  the  crime  ;  and  the 
jury  have  here  found  everything  that  the  act  renders  material.  It  was 
probably  intended  to  prevent  precisely  such  frauds  as  these  ;  and  the 
argument  that  this  is  a  mere  vaunting  or  puffing  off  of  goods  that  a 
tradesman  is  anxious  to  sell  is  answered  by  this,  that  the  jury  have 


SECT.  III.]  RKGINA    V.    BRYAN.  765 

found  tlif.t  the  representations  were  made  fraudulently  and  with  intent 
to  cheat  the  prosecutor.  Where  there  is  such  an  intent,  and  it  is  acted 
upon  successfully,  there  can  be  no  inconvenience  in  holding  it  to  be 
punishable  as  a  crime  ;  and  a  jury  of  tradesmen  would  not  be  likely  to 
convict  a  man  who  had  merely  exaggerated  the  value  of  his  property 
for  tlie  purpose  of  getting  a  better  price  for  it.  That  is  often  done 
innocently,  or  at  least  without  any  fraudulent  intent ;  but  here  such 
limits  are  far  overstepped.  R.  v.  Roebuck  virtually  decides  this  case, 
for  the  pretences  are  substantially  the  same.  It  is  true  that  there  the 
chain  which  was  represented  to  be  silver  was  not  silver  at  all ;  but 
here  the  representation  is  equally  false,  for  although  the  spoons  were 
coated  with  silver,  it  was  in  so  small  a  quantity  as  to  render  them  almost 
valueless.  So  in  R.  r.  Abbott,  whatever  might  be  the  pretence  alleged 
in  the  indictment,  in  substance  the  fraud  consisted  in  selling  a  very 
inferior  article  for  one  of  superior  quality. 

liohinsou,  in  reply.  Whatever  the  representations  may  be,  they 
have  reference  to  quality,  and  not  to  species ;  and  this,  at  all  events, 
distinguishes  the  case  from  R.  v.  Roebuck,  and  all  the  other  cases  that 
have  been  decided  upon  this  point.  As  to  R.  r.  Kenrick  the  decision 
did  not  turn  upon  the  pretence  mentioned,  namely,  that  the  horses 
were  quiet  to  ride  and  drive.  There  were  other  pretences  in  that  case 
that  would  be  clearly  within  the  rule  that  the  pretences  had  been  made 
with  respect  to  spec^ific  facts,  and  it  was  upon  these  that  the  court 
acted.  In  R.  v.  iSherwood  there  was  a  pretence  that  there  were  eigh- 
teen tons  of  coal  to  be  delivered,  when  in  truth  there  were  only  four- 
teen. There  was  therefore  an  assertion  that  there  were  four  tons  of 
coal  in  the  wagon  which  did  not  exist  at  all.  Here  the  number  of 
spoons  delivered  was  correctly  represented,  but  each  individual  spoon 
was  of  an  inferior  description.  In  fact,  the  case  states  that  it  was  the 
declaration  of  the  prisoner  with  regard  to  the  quality  of  the  goods, 
and  nothing  else,  which  induced  the  prosecutors  to  part  with  their 
money. 

On  the  conclusion  of  the  argument,  the  learned  judges  retired  to 
consider  the  case,  and  on  their  return  they  delivered  the  following 
judgments  seriatim :  — 

Lord  Campbell,  C.  J.  I  am  of  opinion  that  this  conviction  cannot 
be  supported,  as  it  seems  to  me  to  proceed  upon  a  mere  representation, 
"diuTng  the  IJargaining  for  the  purchase  of  a  commodity,  of  the  quality 
of  that  commodity. ,  In  the  last  case  which  we  disposed  of  (R.  v.  .Sher- 
wood), after  the  purchase  had  been  completed  there  was  a  distinct 
averment  which  was  known  to  be  false,  respecting  the  quantity  of  the 
goods  delivered,  and  in  respect  of  that  misrepresentation  a  larger  sum 
of  money  was  received  than  ought  to  have  been  received,  the  amount 
of  which  could  be  easily  calculated  ;  and  therefore  I  thought,  and  I  think 
now,  that  that  was  clearly  a  case  within  the  Act  of  Parliament.  But 
hcve,  if  you  look  at  what  is  stated  upon  the  face  of  the  case,  it  resolves 


766  KEGINA   V.    BRYAN.  [CHAP.  X. 

itself  into  a  mere  misrepresentation  of  the  quality  of  the  article  that  wus 
sold,  bearing  in  mind  that  the  article  was  of  the  species  that  it  was  rep- 
resented to  be  to  the  purchaser,  namely,  plated  spoons,  and  that  the 
purchaser  received  them.  Now,  it  seems  to  me,  it  never  could  have 
been  the  intention  of  the  legislature  to  make  it  an  indictable  offence 
for  the  seller  to  exaggerate  the  quality  of  that  which  he  was  selling, 
any  more  than  it  would  be  an  indictable  offence  for  the  purchaser,  dur- 
ing the  bargain,  to  depreciate  the  quality  of  the  goods,  and  to  say  that 
they  were  not  equal  to  that  which  they  really  were.  It  seems  to  me 
that  this  is  an  extension  of  the  criminal  law  which  is  most  alarming, 
for  not  only  would  sellers  be  liable  to  be  indicted  for  an  extravagant 
representation  of  the  value  of  goods,  but  purchasers  would  be  liable 
to  be  indicted  if  they  improperly  depreciated  the  quality  of  the  goods, 
and  induced  the  sellers  by  that  depreciation  to  sell  the  goods  at 
an  under  price,  and  below  the  real  value  of  the  goods,  which  would 
have  been  paid  for  them  had  it  not  been  for  that  representation.  Now, 
as  yet,  I  find  no  case  in  which  it  has  been  held  that  this  misrepre- 
sentation, at  the  time  of  sale,  of  the  quality  of  the  goods,  has  been 
held  to  be  an  indictable  offence.  In  Reg.  o.  Roebuck  the  article  de- 
livered was  not  of  the  species  bargained  foi",  for  there  it  was  for  a 
silver  chain,  and  the  chain  that  was  sold  was  not  of  silver,  but  was  of 
some  base  metal,  and  was  of  no  value.  But  here  the  spoons  were 
spoons  of  the  species  that  was  bargained  for,  although  the  quality  was 
inferior.  It  seems  to  me,  therefore,  that  this  is  not  a  case  within  the 
Act  of  Parliament,  and  tliat  the  conviction  cannot  be  supported.^ 

Pollock,  C.  B.  There  may  be  considerable  difficulty  in  laying  down 
any  general  rule  which  shall  be  applicable  to  each  particular  case,  and 
although  I  think  that  the  statute  was  not  meant  to  apply  to  the  ordi- 
nary commercial  dealings  between  buyer  and  seller,  yet  I  am  not  pre- 
pared to  lay  down  this  doctrine  in  an  abstract  form,  because  I  am 
clearly  of  opinion  that  there  might  be  many  cases  of  bu^'ing  and  sell- 
ing to  which  the  statute  would  apply.  I  think  if  a  tradesman  or  a 
merchant  were  to  concoct  an  article  of  merchandize  expressly  for  the 
purpose  of  deceit,  and  were  to  sell  it  as  and  for  something  very  differ- 
ent even  in  quality  from  what  it  was,  there  I  think  the  statute  would 
apply.  80  if  a  mart  were  opened,  or  a  shop  in  a  public  street,  with  a 
view  of  defrauding  the  public,  and  puffing  off  articles  calculated  to 
catch  the  eye  wliich  really  possessed  no  value,  there  I  think  the  statute 
would  apply ;  but  I  think  it  does  not  apply  to  the  ordinary  commercial 
dealings  between  man  and  man,  and  certainly,  as  has  been  observed 
by  the  Lord  Chief  Justice,  if  it  applies  to  the  seller,  it  equ.ally  applies 
to  the  purchaser.  It  is  not  very  likely  that  many  cases  of  that  sort 
would  arise.  It  would  be  very  inconvenient  to  lay  down  a  principle 
that  would  prevent  a  man  from  endeavoring  to  get  the  article  cheap. 

^  Concurring  opinions  of  Cockburn,  C.  J.,  Coleridge,  Cresswell,  Erle,  Cromp- 
TON,  and  CuowDER,  JJ.,  Watson  and  Channell,  B.B.,  are  omitted. 


SECT.  III.]  EEGINA   V.    BRYAN.  767 

which  he  was  bargaining  for,  and  that  if  he  was  endeavoring  to  get  it 
under  the  value  he  might  be  indicted  for  so  doing.  And  there  is  this  to 
be  observed,  that  if  the  successfully  obtaining  your  object,  either  in  get- 
ting goods  or  money,  is  an  indictable  offence,  any  actempt  or  step  towards 
it  is  an  indictable  oft'ence  as  a  misdemeanor,  because  any  attempt  or 
any  progress  made  towards  the  completion  of  the  offence  would  be  the 
subject  of  an  indictment,  and  then  it  would  follow  from  that,  that  a 
man  could  not  go  into  a  broker's  shop  and  cheapen  an  article  but  he 
would  subject  himself  to  an  indictment  for  misdemeanor  in  endeavor- 
ing to  get  the  article  under  false  pretences.  For  these  reasons  1  think 
it  may  be^fairly  laid  down, Jthat  any  exaggeration  or  depreciation  in 
the  ordinary  course  of  dealings  between  buyer  and  seller  during  the 
progress  of  a  bargain  is  not  the  subject  of  a  criminal  prosecution.  I 
think  this  case  falls  within  that  proposition,  and  therefore  this  con- 
viction cannot  be  supported. 

WiLLES,  J.^  I  am  of  opinion  at  variance  with  those  which  have 
been  generally  expressed,  but  such  as  my  opinion  is  I  am  bound  to 
pronounce  it,  and  I  do  so  with  the  greater  confidence,  because  it  was 
the  settled  opinion  of  the  late  Chief  Justice  Jervis,  than  whom  no  man 
who  ever  lived  was  more  competent  to  form  a  correct  opinion  upon 
the  subject.  I  think  that  the  conviction  was  right  and  that  it  ought 
to  be  affirmed.  It  appears  to  me,  in  looking  through  the  cases,  that  a 
great  number  of  the  observations  that  have  been  thrown  out  with  regard 
to  the  construction  of  the  statute  would  not  have  been  made  if  the  words 
of  the  statute  had  been  more  strictly  looked  at ;  and  that  even  some  of 
the  judgments  wi>uld  not  have  been  pronounced  if  those  who  pronounced 
them  had  not  permitted  tliemselves  to  consider  whether  it  would  or 
would  not  be  convenient  to  trade  to  adopt  one  interpretation  or  an- 
other. I  think  the  words  of  the  act  should  be  implicitly  followed,  and 
the  legislature  should  be  obeyed  according  to  the  terms  in  which  it  has 
expressed  its  will  in  the  53d  section  of  the  7  &  8  G.  IV.  c.  29.  I  am 
looking  to  the  words  of  that  section,  and  I  am  unable  to  bring  myself 
to  think  that  its  framers  were  dealing  with  anything  in  the  nature  of 
a  distinction  between  the  case  of  goods  fraudulently  obtained  by  eon- 
tract  and  goods  so  obtained  without  any  contract.  The  section  com- 
mences with  the  recital,  "  That  whereas  a  failure  of  justice  frequently 
arises  from  the  subtle  distinction  between  larceny  and  fraud  ;  "  now 
this  recital  ought  not  on  a  proper  construction,  and  according  to  those 
authorities  by  which  we  are  bound,  to  have  the  effect  of  restraining 
the  operation  of  the  enacting  clause.  The  enacting  part  of  the  sec- 
tion is,  "  if  any  person  shall  b}'  any  false  pretence  obtain  from  any 
other  person  any  chattel,  money,  or  valuable  security,  with  intent  to 
cheat  or  defraud  any  person  of  the  same,  every  such  offender  shall  be 
guilty  of  a  misdemeanor."     And  it  appears  to  me  that  the  only  proper 

^  Bramwell,  B.,  also  delivered  an  opinion  supporting  the  conviction. 


768  EEGINA  V.   BRYAN.  [CHAP.  X. 

test  to  apply  to  any  case  is  this,  whether  it  was  a  false  pretence  by 
which  the  property  was  obtained,  and  whether  it  was  obtained  with 
the  intention  to  cheat  and  defraud  the  person  from  whom  it  was  ob- 
tained. Now  in  this  case  it  Appears  that  there  was  a  false  pretence  ; 
there  was  a  pretence  that  the  goods  had  as  much  silver  upon  them  as 
Elkiugton's  A  ;  there  was  also  the  pretence  that  the  foundations  were 
of  the  best  material.  If  I  could  bring  myself  to  take  the  view  which 
my  brother  Erie  has  taken  of  the  statement  of  the  case,  that  these 
were  matters  of  opinion,  and  not  matters  of  fact,  which  could  be 
ascertained  by  inspection  or  calculation,  possibly  I  might  arrive  at 
the  same  conclusion  as  he  has  done  ;  but  it  appears  to  me  on  the 
face  of  the  case  that  Elkington's  A  must  have,  been  a  fixed  quan- 
tity, and  that  the  proper  material,  the  best  material  for  the  foun- 
dation of  such  plated  articles,  must  have  been  a  well  known  quality 
in  the  trade,  because  it  appears  that  the  prisoner  made  a  statement 
with  respect  to  the  quantity  of  silver  and  the  quality  of  the  founda- 
tion with  the  intent  to  defraud.  It  appears  that  the  person  who 
made  the  advance  was  thereby  defrauded,  —  thereby  induced  to  make 
the  advance  ;  the  jury  have  found  that  the  statements  were  known  by 
the  prisoner  to  be  untrue,  and  that  in  consequence  of  these  statements 
he  obtained  the  money  mentioned  in  the  indictment.  It  appears  to  me 
that,  for  all  pi'actical  purposes,  that  ought  to  be  taken  to  be  a  sufficient 
fact  coming  within  the  region  of  assertion  and  calculation,  and  not  a 
mere  speculative  opinion,  and  that  it  should  be  considered  a  false  pre- 
tence. If  the  misrepresentation  was  a  simple  commendation  of  the 
goods ;  if  it  was  a  mere  puffing  of  the  articles  which  were  offered  in 
pledge  ;  if  it  was  entirely  a  case  of  one  person  dealing  with  another  in 
the  way  of  business,  who  might  expect  to  pay  the  price  of  the  articles 
which  were  offered  for  the  purpose  of  pledge  or  sale,  —  I  apprehend  it 
would  have  been  easily  disposed  of  by  the  jury  who  had  to  pass  an 
opinion  upon  the  question,  acting  as  persons  of  common  sense  and 
knowledge  of  the  world.  It  would  be  a  question  for  them  in  such  case 
whether  the  matter  was  such  ordinary  puffing  that  a  person  ought  not 
to  be  taken  in  by  it,  or  whether  it  was  a  misrepresentation  of  a  specific 
fact  material  to  the  contract,  intended  to  defraud,  and  by  which  the 
money  in  question  was  obtained.  Well,  then,  there  is  the  latter  part 
of  the  section,  "  with  intent  to  cheat  and  defraud  any  person  of  the 
same."  It  must  be  with  the  intention  to  cheat  or  defraud  the  person 
of  the  same,  and  that  intention  here  is  found  to  have  existed  ;  there- 
fore I  am  unable  to  bring  my  mind  to  feel  any  anxiety  to  protect 
persons  who  make  false  pretences  with  intent  to  cheat  and  de- 
fraud. The  effect  of  establishing  such  a  rule  as  is  contended  for 
would,  in  my  opinion,  be  rather  to  interfere  with  trade  and  to  pre- 
vent its  being  carried  on  in  the  way  in  which  it  ouglit  to  be  carried 
on.  I  am  far  from  seeking  to  interfere  with  the  rule  as  to  simple 
commendation  or  praise  of  the   articles  which  are  sold,  on  the  one 


SECT,  III.]  REGINA   V.    GOSS.  769 

Iiaud,  or  to  that  which  is  called  chafferiug  on  the  other  ;  those  are 
thiugs  persons  may  expect  to  meet  with  in  the  ordinary  and  usual 
course  of  trade.  But  as  to  the  fear  of  multiplying  prosecutions,  I  am 
afraid  that  we  live  in  an  age  in  which  fraud  is  multiplied  to  a  great 
extent,  and  in  the  particular  form  which  this  case  assumes.  1  agree 
in  what  the  late  Chief  Justice  Jervis  stated  as  most  peculiarl}-  applica- 
ble, namely,  that  as  to  such  a  commerce  as  requires  to  be  protected  by 
this  statute  being  limited  in  the  mode  suggested,  trade  ought  to  be 
made  honest  and  conform  to  the  law,  and  not  the  law  bend  for  the  pur- 
pose of  allowing  fraudulent  commerce  to  go  on.  I  cannot  help  think- 
ing therefore,  upon  the  fair  construction  of  the  o3d  section  of  the  7 
&  8  G.  IV.  c.  29,  the  prisoner  in  this  case  having  fraudulently  repre- 
sented that  there  was  a  greater  amount  of  silver  in  the  articles 
pledged  than  there  really  was,  and  that  there  was  a  superior  founda- 
tion of  metal  (that  being  untrue  to  his  knowledge),  for  the  purpose 
of  defrauding  the  prosecutors  of  their  money,  which  he  accordingly 
obtained,  he  was  indictable,  and  that  the  conviction  should  be 
affirmed.^ 


REGINA  V.   GOSS;    REGINA   v.   RAGG. 
Crown  Cases  Reserved.     1860. 

[Reported  8  Cox  C.  C.  262.] 

Regina  V.  Goss. 

Case  reserved  for  the  opinion  of  this  court  b}''  the  Recorder  of 
Northampton. 

The  prisoner,  Thomas  Goss,  was  tried  before  me  at  the  last  Michael- 
mas Sessions  for  the  borough  of  Northampton,  for  obtaining  mone}^  by 
false  pretences.'^ 

It  was  proved  at  the  trial  that  the  prosecutor,  Thomas  Roddis,  on 
the  19tli  September  last,  was  attending  the  cheese  fair  held  within 
the  borough  of  Northampton,  and  that  the  prisoner  was  in  the  fair, 
and  sold  to  the  prosecutor  eight  cheeses,  weighing  1  cwt.  3  qrs.  1  lb. 
for  which  the  prosecutor  paid  the  prisoner  the  sum  of  £3  19s.  6d., 
being  at  the  rate  of  i^d.  per  pound.  On  the  prosecutor  going  into 
the  fair,  the  prisoner  offered  to  sell  hira  the  eight  cheeses,  and  bored 
six  of  them  with  a  cheese-scoop,  and  then  produced  and  offered  to 
the  prosecutor  several  pieces  of  cheese,  which  are  called  "tasters," 
successively  at  the  end  of  the  scoop  for  the  prosecutor  to  taste,  and 
in  order  that  he  might  taste  them  as  being  respectively  samples  and 

1  Ace.  Reg.  V.  Levine,  10  Cox  C.  C.  374.  Contra,  Reg.  v.  Ardley,  12  Cox  C.  C.  23 
See  Reg.  v.  Evans,  9  Cox  C.  C.  238 ;  Reg.  v.  Lawrence,  36  L.  T.  Rep.  404.  —  Ed. 

2  The  indictment  is  omitted. 


770  REGINA   V.    GOSS.  [CHAP.  X. 

portions  of  the  six  cheeses  which  the  prisoner  had  bored  ;  and  accord- 
ingl}'  the  prosecutor  did  taste  thera,  and  then  offered  the  prisoner  A^d. 
per  pound  for  the  eight  cheeses,  which  the  prisoner  accepted. 

The  tasters,  however,  had  not  in  fact  been  extracted  from  the 
cheeses  offered  for  sale,  for  after  the  prisoner  had  bored  tlie  cheeses, 
and  before  he  handed  the  tasters  to  the  prosecutor,  he  took  from  his 
coat  pocket  pieces  of  cheese  of  better  quahty  and  description  than 
those  taken  from  the  cheeses  which  he  had  bored,  and  privih*  and 
fraudulently  put  these  pieces  of  cheese  at  and  into  the  top  of  the 
scoop  for  the  prosecutor  to  taste,  and  the  cheese  which  the  prosecutor 
did  taste,  was  not  any  portion  of  the  six  cheeses  which  the  prisoner 
bored. 

The  prosecutor,  at  the  time  he  bought  the  eight  cheeses,  believed 
that  he  had  been  tasting  a  portion  of  those  cheeses,  and  in  that  belief 
bouglit  them,  and  paid  the  prisoner  the  £3  195.  %d.  for  thera,  which  he 
would  not  have  done  unless  he  had  believed  that  the  tasters  had  been 
extracted  from  the  cheeses  which  he  so  bought.  The  cheeses  were 
delivered  to  the  prosecutor,  and  he  retained  possession  of  them  up  to 
the  trial. 

The  value  of  the  eight  cheeses  would  be  about  Sc?.  per  lb. 

The  prisoner's  counsel  at  the  trial  objected  that  there  was  no  evi- 
dence to  support  the  indictment,  or  of  anj-  facts  which  would  consti- 
tute a  false  pretence  within  the  statute. 

I  left  the  case  to  the  jury,  and  the  prisoner  was  convicted  ;  but 
having  some  doubt  as  to  whether  the  case  of  Reg.  v.  Abbott  2  Cox 
Crira.  Cas.  430,  had  not  been  shaken  by  subsequent  decisions  (see 
Reg.  V.  Brj-an,  7  Cox  Crim.  Cas.  312),  I  reserved  the  ease  for  the 
opinion  of  the  Court  of  Appeal.  John  H.  Brewer. 

No  counsel  was  instructed  to  argue  in  behalf  of  the  prosecution. 

Merewether  (for  the  prisoner).  This  case  was  reserved  hi  conse- 
quence of  the  remarks  of  some  of  the  judges  upon  the  case  of  Reg. 
V.  Abbott,  2  Cox  Crim.  Cas.  430,  which  was  decided  upon  the  author- 
ity of  Reg.  V.  Kenrick,  5  Q.  B.  49.  The  facts  in  the  present  case 
are  precisel}-  the  same  as  in  Reg.  v.  Abbott ;  and  unless  that  case  can 
be  impeached,  this  conviction  must,  no  doubt,  be  u[)held.  In  Reg.  v. 
Roebuck,  7  Cox  Crim.  Cas.  126,  Lord  Campbell,  C.  J.,  said;  "If 
this  were  res  Integra,  I  should  not  agree  with  Reg.  ik  Abbott,  because 
I  think  that  there  the  intention  of  the  prisoner  was  to  obtain  a  better 
bargain,  and  not  animo  furandi  ;  but  that  having  been  decided  by 
ten  judges,  I  do  not  wish  on  the  present  appeal  to  disturb  it."  So  in 
Reg.  V.  Eagleton,  6  Cox  Crim,  Cas.  559,  the  authorit}-  of  Reg.  v. 
Abbott  and  Reg.  v.  Kenrick  was  much  disputed  in  the  course  of  the 
argument ;  but  the  court  said  that  it  did  not  then  become  necessary 
to  consider  those  cases.  In  Reg.  v.  Br3'an,  7  Cox  Crim.  Cas.  312, 
the  defendant,  in  order  to  obtain  a  loan  on  a  quantity  of  plated  spoons, 
represented  to  a  pawnbroker  that  the}'  were  of  the  best  qualit}-,  and 


SECT.   Ill.j  KEGINA    V.    RAGG.  771 

were  equal  to  Elkingtoii's  A  (moaning  spoons  and  forks  made  by 
Elkington,  and  stamped  witli  tlie  letter  A)  ;  that  the  foundation  was 
of  the  best  material,  and  that  the}'  had  as  much  silver  upon  them  as 
Elkington's  A.  The  jury  found  that  these  representations  were  wil- 
full\-  false,  and  that  by  means  of  them  the  loan  was  obtained.  Held 
(Willes,  J.,  and  Bramwell,  B.,  disse/itie/itibus),  that  the  conviction 
was  wrong,  and  that  the  representation  being  a  mere  exaggeration  or 
puffing  of  the  quality  of  the  goods  in  the  course  of  a  bargain,  it  was 
not  a  false  pretence  within  the  statute.  In  Reg.  v.  Sherwood,  7  Cox 
Crim.  Cas.  270,  the  prisoner,  after  he  had  agreed  with  the  prosecutor 
to  sell  and  deliver  a  load  of  coals  at  a  certain  price  per  cwt.,  falsely 
and  fraudulently  pretended  that  the  (luantitj-  which  he  had  delivered 
was  18  cwt ,  and  that  it  had  been  weighed  at  the  colliery,  and  the  weight 
put  down  b}'  himself  on  a  ticket  which  he  produced,  he  knowing  it  to 
be  14  cwt.  onl}',  and  thereby  obtained  an  additional  sum  of  money; 
and  this  was  held  to  amount  to  a  false  pretence  within  the  statute. 
In  that  case  a  difficulty  was  felt  by  the  court  in  drawing  the  line 
between  indictable  and  non-indictable  false  representations. 

The  Court  said  that  they  had  no  doubt  about  Reg.  v.  Abbott  being 
a  decision  that  they  would  act  upon,  and  sound  in  principle,  but  they 
desired  the  case  of  Reg.  v.  Joseph  Ragg  (being  on  the  same  subject), 
to  be  called  on  before  giving  judgment. 

Regina  y.  Ragg. 

Case  reserved  for  the  opinion  of  this  court  by  the  Chairman  of  the 
Leicestershire  Quarter  Sessions. 

Joseph  Ragg  was  tried  before  me  at  the  General  Quarter  Sessions 
of  the  peace  for  the  county  of  Leicester,  held  on  the  3d  Januar}',  1860, 
for  obtaining  mone}'  under  false  pretences  from  Henr}-  Harris. 

The  indictment  stated  the  pretence  to  be,  a  false  pretence  as  to  the 
character  and  weight  of  a  quantity  of  coals,  sold  and  delivered  b}-  the 
prisoner  to  the  prosecutor. 

It  appeared  in  evidence  as  follows :  The  prisoner  was  a  coal 
dealer.  On  the  28th  November  he  called  at  the  house  of  the  prose- 
cutor in  Loughborough,  with  a  load  of  coals  in  a  cart,  and  inquired 
if  he  (the  prosecutor)  wanted  to  buy  a  load  of  "  Forest  "  coal.  The 
prosecutor  replied  that  the  coals  did  not  look  like  Forest  coal,  be- 
cause the}'  looked  so  dull.  The  prisoner  replied,  "  I  assure  j'ou  they 
are  Forest  coal,  and  the  reason  of  their  looking  so  dull  is  because 
they  have  been  standing  in  the  rain  all  night ;  there  is  15  cwt.  of  them, 
for  I  paid  for  14  cwt.  at  the  coal-pits,  and  they  gave  me  1  cwt.  in." 
On  this  the  prosecutor  bought  the  coal,  and  paid  7s.  6d.  for  the  load. 
The  prisoner  unloaded  the  cart,  and  packed  the  coals  in  the  prosecu- 
tor's coal-place.  When  the  prosecutor  saw  the  coals  in  the  coal-place, 
they  appeared  to  be  much  too  small  a  quantitv  to  weigh  15  cwt.,  and  he 
had  them  weighed,  when  it  was  found  that  they  weighed  8  cwt.  onh'. 


772  REGINA    V.    RAGG.  [cHAP.  X. 

Tlie  prisoner  had  at  this  time  received  his  money  and  gone  away, 
but  the  prosecutor  went  after  him,  challenging  him  with  the  fraud,  and 
asking  for  redress.  The  prisoner,  however,  refused  to  make  anj-,  stat- 
ing "  that  he  did  not  make  childish  bargains,  and  that  the  prosecutor 
could  not  do  anything  to  him,  because  he  had  not  sold  the  coal  by 
weight,   but  by  the  load." 

The  prosecutor  stated  that  he  had  bought  the  coal  on  the  representa- 
tion of  the  prisoner  that  there  were  15  cwt.,  and  the  size  of  the  cart 
and  the  appearance  of  the  coal  therein,  warranted  the  belief  that  there 
were  15  cwt. ;  but  it  turned  out  that  the  coal  was  loaded  in  a  particular 
manner,  technically  known  as  ''  tunnelling  ;  "  that  is,  the  coal  (which  is 
in  large  lumps)  is  so  built  up  in  the  cart,  that  one  lump  rests  on  the 
edges  of  that  below  it,  and  large  spaces  are  left  between  the  lumps  of 
coal,  and  thus  there  is  an  appearance  of  a  greater  quantity  of  coal  than 
there  actually  is. 

From  further  evidence,  it  appeared  that  the  coal  was  not  Forest 
coal  at  all,  and  had  not  been  bought  at  the  pits,  but  was  Rutland  coal, 
and  bought  that  same  morning  at  a  wharf  in  the  town  of  Loughborough  ; 
that  the  cart,  when  loaded  at  the  wharf,  had  weighed  8  cwt.  only,  and 
although  the  prisoner  stated  that  other  coal  had  been  added  to  it  from 
another  cart-load  purchased  at  the  same  time  from  the  wharf,  there  was 
no  evidence  of  this  produced  at  the  trial. 

It  further  appeared  that  on  the  same  da}',  and  a  ver}-  short  time 
after  the  coal  was  sold  to  the  prosecutor,  the  prisoner  had  offered  the 
same  load  to  another  person  as  containing  13  cwt.,  but  on  looking  at 
the  cart  it  was  evident  that  the  coal  was  "tunnelled,"  and  the  pris- 
oner was  then  and  there  challenged  with  the  fact,  and  told  that  there 
was  not  above  8  cwt.  in  the  cart,  or  10  cwt.  at  the  most. 

The  prisoner  was  not  defended  by  counsel,  and  the  jury  found  him 
guilty. 

With  respect  to  the  false  pretence  as  to  the  "■character"  of  the 
coal,  it  appeared  to  me,  on  inquiring  of  the  witnesses,  that  there  was 
not  much  real  difference  in  value  between  the  Forest  coal  and  the 
Rutland  coal,  and  that  the  preference  of  one  over  the  other  was 
rather  according  to  the  idea  of  the  customer,  than  the  actual  value 
of  the  article  ;  and  I  should  not  have  considered  it  a  case  of  false 
pretences  under  the  statute  hnd  this  been  the  only  misrepresentation  ; 
but  T  considered  thnt  the  evidence  showed,  not  merely  a  false  state- 
ment as  to  the  quantit}-,  but  a  preconceived  intention  to  defraud,  and 
a  mode  of  packing  the  coal,  resorted  to  for  the  purpose  of  fraud,  and 
thnt  therefore  the  jur}'  properly  found  the  prisoner  guilty. 

On  referring,  however,  to  the  case  of  Reg.  v.  Sherwood,  I  found  that 
some  of  the  learned  judges  who  gave  judgment  therein  had  apparently 
drawn  a  distinction  between  tlie  case  of  a  false  representation  made 
during  the  bargaining,  and  that  made  after  the  sale  was  completed  ; 
and  in  the  present  case,  "as  the  false  pretence  was  made  in  the  course 
of  the  progress  of  a  sale,"  I  did   not  feel  justified  in  sentencing  the 


SECT.  III.]  KEGINA    V.   RAGG.  773 

piisouer  until  the  subject  had  come  under  the  coubiderution  of  the 
judges.  I  therefore  postponed  the  sentence,  and  directed  that  the 
prisoner  might  be  liberated  on  bail  to  appear  and  receive  sentence 
at  the  next  Easter  Sessions. 

Hy.  J.  HosKiNS,  Deputy  Chairman. 

No  counsel  were  instructed  either  for  the  prosecutor  or  prisoner. 

Erle,  C.J.  We  ai'e  all  of  opinion  that  the  conviction  in  each  case 
was  right.  With  reference  to  the  case  of  Joseph  Ragg,  there  was  a 
false  representation  that  the  quantity  of  coals  in  the  cart  was  1.5  cwt., 
whereas  onl}'  about  8  cwt.  were  delivered,  and  there  was  a  pretence  of 
a  delivery  of  7  cwt ,  no  part  of  which  had  been  delivered.  And  al- 
though the  falsehood  was  only  as  to  part  of  the  entire  quantity  to  be 
delivered,  yet  this  falls  within  the  class  of  cases  of  false  representa- 
tions as  to  the  quantit}'  of  goods  delivered,  the  principle  of  which  is 
a  false  pretence  of  a  matter  of  fact  cognisable  by  the  senses,  which  is 
an  indictable  offence  within  the  statute.  With  regard  to  the  case  of 
Thomas  Goss,  there  was  also  a  false  pretence  of  a  matter  cff  fact 
within  the  cognisance  of  the  senses  ;  for  b}'  a  sample  which  he  falsel}' 
represented  as  a  part  of  the  very  cheese  to  be  sold,  but  which  was  part 
of  a  cheese  altogether  different  both  in  substance  and  value,  he  procured 
the  purchaser  to  buy  the  inferior  cheese,  and  part  with  his  mone}'.  That 
was  a  false  pretence  as  to  the  substance  of  the  article  for  sale,  whereby 
the  prisoner  was  enabled  to  pass  off  a  counterfeit  article  as  and  for 
the  genuine  substance.  In  Reg.  v.  Roebuck,  7  Cox  Crim.  Cas.  126, 
it  was  held  that  falseh'  representing  to  a  pawnbroker  that  a  chain  is 
silver,  the  prisoner  knowing  it  to  be  a  base  metal,  is  indictable.  So 
here  the  drawing  from  the  prisoner's  pocket,  samples  from  another 
cheese,  and  not  the  cheese  intended  for  sale,  which  was  a  totally-  dif- 
ferent substance,  and  falsel}^  pretending  to  the  purchaser  that  those 
samples  were  part  of  the  substance  which  he  was  to  buy,  that  is 
equally  an  indictable  offence  within  the  statute,  and  falls  within  the 
class  of  cases  to  which  belong  Reg.  v.  Abbott,  where  the  substance  of 
the  purchase  was  a  cheese  of  the  identical  character  with  the  taster  ; 
and  Reg.  v.  Dundas,  6  Cox  Crim.  Cas.  380,  where  the  article  sold 
was  falseh-  pretended  to  be  Everett's  blacking,  which  was  a  known 
article  in  the  neighborhood,  whereas  in  fact  the  article  passed  off  was 
a  counterfeit.  In  the  case  of  Reg.  v.  Bryan,  the  case  of  the  plated 
spoons  represented  as  equal  to  Elkington's  A,  the  judges  who  consti- 
tuted the  majority  decided  that  case  on  the  principle,  that  indefinite 
praise  on  a  matter  of  opinion,  is  not  within  the  limit  of  indictable 
offences.  A  great  deal  of  dissatisfaction  has  been  expressed  with  that 
decision,  as  if  it  must  operate  as  an  encouragement  to  falsehood  and 
fraud,  and  so  lead  to  a  great  deal  of  mischief;  but  it  should  be  recol- 
lected what  an  extreme  calamity'  it  is  to  a  respectable  man,  to  have  to 
stand  his  trial  at  a  criminal  bar  as  a  cheat,  upon  an  indictment  at  the 
instance  of  a  dissatisfied  purchaser.     It  is  easy  for  an  imaginative 


774  REGINA   V.    JENNISON.  fCHAP.  X. 

person  to  fall  into  an  exaggeration  of  praise  upon  the  sale  of  his 
g(iods.  And  if  such  statements  are  indictable,  a  person  who  wishes 
to  get  out  of  a  bad  bargain  made  by  his  own  negligence,  might  have 
recourse  to  an  indictment,  on  the  trial  of  which  the  vendor's  state- 
ment on  oath  would  be  excluded,  instead  of  being  obliged  to  bring  an 
action,  where  each  party  would  be  heard  on  equal  terms.  It  is  of 
great  public  importance  to  endeavor  to  draw  the  line  distinctly  between 
false  representations  which  are  indictable,  and  those  which  are  not. 
In  the  present  case  there  was  a  false  representation  tliat  an  article  was 
a  genuine  substance,  and  the  passing  off  a  counteifeit  substance,  and 
that  was  an  indictable  offence.  My  brother  Willes,  J.,  in  Reg.  v. 
Bryan,  threw  a  great  deal  of  hght  on  the  law  as  to  false  pretences, 
and  though  he  differed  from  the  majority  of  the  judges  in  the  decision, 
he  did  not  differ  from  the  principle  of  that  decision,  but  only  upon  the 
api)lication  of  that  principle  to  the  case.  The  majority  of  the  judges 
thought  the  representation  there  to  be  a  matter  of  opinion  only  ;  my 
brother  Willes  thought  it  a  representation  of  a  matter  of  fact,  as  if  the 
representation  had  been,  there  is  as  much  silver  in  the  spoons  as  in 
p:ikington"s  A,  and  in  his  judgment  it  was  the  false  representation  of 
a  definite  fact.  We  are  therefore  of  opinion  that  this  conviction  must 
be  affirmed. 

WiGHTMAN,  J.  I  am  of  the  same  opinion.  I  would  merely  add, 
with  reference  to  the  cheese  cases  and  Elkington's  ease,  one  observa- 
tion. If  the  prisoner  had  said  that  the  cheeses  were  equal  to  the 
tasters  produced,  that  would  have  fallen  within  the"  Elkington's  case  ; 
but  he  said  to  the  prosecutor,  "  These  tasters  are  a  part  of  the  very 
c4ieeses  I  propose  to  sell  to  you  ; "  and  therefore  it  was  a  misrepre- 
sentation of  a  definite  fact. 

The  rest  of  the  court  concurring. 

Convictions  affirmed} 


REGINA  V.   JENNISON. 
\  Crown  Case  Reserved.     1862. 

[Reported  9  Cor  C.  C.  158.] 

Case  reserved  for  the  opinion  of  this  court  by  Cockburn,  C.  J. 
John  Jennison  was  indicted  and  tried  before  me  at  the  last  Assizes 
for  the  county  of  Nottingham  for  obtaining  £8  from  one  Ann  Hayek 
by  false  pretences. 

The  prisoner,  who  had  a  wife  living,  had  represented  himself  to  the 
prosecutrix,  who  was  a  single  woman  in  service,  as  an  unmarried  man, 

1  Arc.  Reg.  V.  Foster,  2  Q.  B.  D.  301.  See  State  v.  Stanley,  64  Me.  157  ;  Jackson  v. 
People,  126  111.  139.  —  Ed. 


SECT,  III.]  REGINA   V.    JENNISON.  775 

and  preteudiug  that  he  was  about  to  marry  her,  induced  her  to  haud 
over  to  him  a  sum  of  £8  out  of  her  wages  received  on  leaving  her  ser- 
vice, representing  that  he  would  go  to  Liverpool,  and  with  the  money 
furnish  a  house  for  them  to  live  in,  and  that  having  done  so  he  would 
return  and  marry  her.  Having  obtained  the  money  the  prisoner  went 
away  and  never  returned. 

The  prosecutrix  stated  that  she  had  been  induced  to  part  with  her 
money  on  the  faith  of  the  representation  of  the  prisoner  that  he  was  a 
single  man,  that  he  would  furnish  a  house  with  the  money,  and  would 
then  marry  her. 

There  was  no  doubt  that  these  representations  were  false,  and  that 
morally  the  money  had  been  obtained  by  false  pretences.  But  it  was 
contended  on  the  part  of  the  prisoner  that,  as  the  prosecutrix  had  been 
induced  to  part  witli  the  money  by  the  joint  operation  of  the  three  repre- 
sentations made  by  the  prisoner,  that  he  was  unmarried,  that  he  would 
furnish  a  house  with  the  money,  and  that  he  would  then  marry  her, 
and  as  only  the  first  of  these  pretences  had  reference  to  a  present  ex- 
isting fact,  while  the  others  related  to  things  to  be  done  in  future,  the 
indictment  could  not  be  maintained. 

I  reserved  the  point,  and  the  prisoner  having  been  convicted,  have 
now  to  request  the  decision  of  the  court  upon  the  question. 

A.  E.  COCKBUBN. 

No  counsel  appeared  to  argue  on  either  side. 

Erle,  C.  J.  We  are  of  opinion  that  the  conviction  in  this  case  was 
proper.  The  indictment  was  for  obtaining  £8  from  Ann  Ha3'es  by 
false  pretences,  and  it  was  found  by  the  jury  that  the  woman  parted 
with  the  money  on  the  false  representation  by  the  prisoner  that  he  was 
a  single  man,  and  the  promise  that  he  would  lay  out  the  money  in  fur- 
nishing a  house  for  them  to  live  in,  and  that  he  would  then  marry  her. 
It  is  perfectly  clear  that  obtaining  money  by  a  false  promise  is  not  the 
subject  of  an  indictment ;  but  here  there  w^as  the  false  pretence  that 
the  prisoner  was  an  unmarried  man,  which  was  an  essential  fact  in 
this  case,  and  without  which  pretence  the  prisoner  never  would  have 
obtained  the  money  from  the  woman.  Now,  one  false  fact,  by  means 
of  which  the  money  is  obtained,  sufficiently  sustains  the  indictment, 
although  it  may  be  united  wuth  false  promises  which  would  not  of 
themselves  do  so.     The  conviction  therefore  was  right. 

The  other  judges  concurring, 

Conviction  affirmed.^ 

1  Ace.  Rex  V,  Young,  Leach  (4th  ed.),  505,  3  T.  R.  98;  Com.  v.  Moore,  80  Ky.  542 
See  Reg.  v.  Johnston,  2  Moo.  C.  C.  254.  —  Ed. 


77G  COMMONWEALTH    V.    DREW.  [cHAP.  X. 


COMMONWEALTH   v.   DREW. 

Supreme  Judicial  Court  of  Massachusetts.     1837. 

[Reported  19  Pickering,  179.] 

The  defendant  was  tried  before  Morton,  J.,  upon  two  indictments, 
in  eacli  of  which  he  was  charged  with  having  procured  money  from 
the  Hancock  Bank  in  Boston  by  false  pretences,  and  with  intent  to 
defraud  the  bank,  upon  two  several  occasions. 

The  pretences  alleged  were  :  1,  that  the  defendant  assumed  the  name 
of  Charles  Adams  ;  2,  that  he  pretended  that  he  wished  to  open  an 
honest  and  fair  account  with  the  Hancock  Bank,  and  to  deposit  and 
draw  for  money  in  the  usual  manner  and  ordinary  course  of  business ; 
and  3,  that  he  pretended  that  two  checks,  described  in  the  indictment, 
were  good,  and  that  he  had  in  deposit  the  amount  for  which  the}'  were 
drawn. 

It  was  proved,  among  other  things,  that  the  defendant  began  to 
deposit  money  in  the  bank  early  in  December,  1835,  and  that  he  con- 
tinued to  deposit  and  draw,  at  various  times  and  in  various  sums,  until 
the  27th  of  January,  1836,  on  which  day,  having  only  $10  deposited 
to  his  credit,  he  drew  a  check  for  $100,  which  was  paid  at  the  bank. 

On  the  30th  of  January,  1836,  a  check  for  $350  was  drawn  by  the 
defendant  and  paid  at  the  bank,  he  having  made  no  deposit  since  the 
payment  of  the  check  presented  on  the  27th  of  January. 

The  defendant  deposited  and  drew  his  checks  by  the  name  of  Charles 
Adams,  and  there  was  another  person  named  CharlQs  Adams  who  de- 
posited at  the  bank  at  the  same  time  ;  but  it  was  not  contended  on  the 
part  of  the  Commonwealth,  that  the  checks  were  paid  because  of  the 
assumption  by  the  defendant  of  the  name  of  Charles  Adams,  nor  that 
any  mistake  was  made  as  to  which  person  of  that  name  drew  the 
check. 

Samuel  B.  Dyer,  a  witness  on  the  part  of  the  Commonwealth,  testi- 
fied that  he  was  the  paying  and  receiving  teller  of  the  bank  ;  that  the 
defendant  first  did  business  at  the  bank  on  the  12th  of  December,  1835  ; 
that  he  asked  to.  have  a  large  bill  of  the  United  States  Bank  exchanged 
for  small  bills,  which  was  done  ;  that  before  he  left  the  bank  he  made  a 
deposit  of  a  considerable  sum,  including  the  bills  just  before  received 
as  above  ;  that  being  asked  in  what  name  he  wished  to  deposit,  he  said, 
in  the  name  of  Charles  Adams  ;  that  he  saw  the  defendant  several 
times  afterwards,  when  he  presented  his  checks  for  payment;  that  the 
defendant  usually  drew  his  checks  in  the  bank,  at  the  desk  kept  for 
that  purpose,  and  presented  them  himself,  and  that  this  was  usually 
done  by  him  about  12  o'clock,  the  most  busy  time  in  the  forenoon  ;  that 
the  witness  had  no  recollection  of  the  presentation  or  payment  of  either 
of  the  two  checks  in  question,  which  were  overdrafts ;   that  he  knew 


SECT.  III.]  COMMONWEALTH   V.    DREW.  777 

they  were  paid  out  of  his  drawer  and  by  his  money,  because  he  found 
the  cheeks  in  his  drawer  and  missed  sums  of  mone}-  corresponding  with 
the  amount  of  tlie  checks  ;  that  he  believed  that  the  check  of  Januar}- 
27tli  was  not  paid  b}'  himself,  but  b}'  the  bank  messenger  for  lain,  who 
took  his  place  a  few  minutes  at  the  counter,  the  messenger  having  told 
him  he  had  paid  a  check  of  Charles  Adams  ;  that  the  witness  paid 
checks  of  the  defendant  unhesitatingl}-,  because  he  had  deposited  for 
some  time,  and  the  witness  presumed  his  checks  to  be  good  from  the 
general  character  of  his  account,  and  having  seen  him  conversing  with 
the  president  of  the  bank,  the  witness  presumed  he  was  acquainted 
with  the  president ;  that  if  the  witness  paid  either  of  the  two  checks  in 
question,  without  inquiring  at  the  desk  of  the  book-keeper  or  looking 
at  the  balance-sheet  to  ascertain  whether  the  defendant  had  mone}'  to 
that  amount  deposited,  it  was  upon  these  grounds  that  he  so  paid. 

It  was  in  evidence,  that  the  boolv-keeper's  desk  was  a  few  feet  from 
the  teller's  counter  ;  that  when  the  teller  doubted  whether  a  check  should 
be  paid,  he  inquired  of  the  book-keeper,  or  looked  at  the  balance-sheet 
kept  by  the  book-keeper,  which  was  made  up  to  the  end  of  every  day, 
and  la\'  upon  the  desk  for  the  inspection  of  the  teller  or  book-keeper  at 
all  times. 

It  was  testified  by  the  teller,  that  the  overdraft  of  the  27th  of  Jau- 
uarv  was  not  reported  for  some  days  after  it  happened ;  and  the 
balance-sheet  showed  that  it  did  not  appear  upon  that  book  until  the 
1st  of  February- 

In  order  to  show  that  the  defendant  overdrew  with  a  fraudulent  intent, 
it  was  proved,  amongst  other  things,  that  he  overdrew,  about  the  same 
time,  at  the  Bunker  Hill  Bank  in  Charlestown,  and  the  Traders'  Bank 
in  Boston, 

The  counsel  for  the  defendant  contended,  that  there  was  no  evidence 
of  the  procuring  of  money  by  any  false  pretence  ;  that  the  mere  draw- 
ing a  check  and  presenting  it  at  the  counter  of  the  bank  to  the  teller 
for  payment,  no  words  being  spoken  and  no  false  appearance  or  token 
presented  or  held  out,  although  the  drawer  knew  lie  had  no  funds 
deposited  there,  was  not  a  "  false  pretence  "  within  the  meaning  of  the 
statute  upon  that  subject ;  and  that  such  presentation  of  a  check,  with 
intent  to  defraud  the  bank,  and  receiving  the  mone}'  upon  the  check, 
did  not  constitute  the  crime  of  obtaining  money  by  false  pretences,  as 
defined  by  the  statute  ;  that  it  was  no  more  than  an  appeal  to  the  books 
of  the  bank,  ke[)t  b}'  the  proper  otlieer,  and  an  offer  to  receive  what 
should  there  be  found  due.  But  the  judge  overruled  these  objections, 
and  instructed  the  jury,  that  if  they  believed  that  the  defendant  became 
a  depositor  at  the  bank  under  a  pretence  of  doing  business  there  in  the 
usual  manner,  but  with  the  fraudulent  design  to  obtain  the  money  of, 
and  cheat  the  bank,  and  drew  the  checks  and  presented  them  at  the 
bank  for  payment,  knowing  that  he  had  not  funds  deposited  sufficient 
to  pa}'  them,  and  that  he  did  this  intending  to  defraud  the  bank  of  the 
sums  so  overdrawn,  although  no  words  were  spoken  and  no  other  token 


778  COMMONWEALTH   V.    DREW.  [CHAP.  X. 

exhibited,  and  if  he  actually  got  the  mone}',  he  was  guilt}-  of  the  crime 
of  obtaining  money  by  false  pretences  within  the  meaning  of  the  statute. 
And  it  was  left  to  the  jury  to  decide  upon  all  the  evidence,  whether  the 
false  pretences  and  the  averments  contained  in  the  indictment  were 
proved  to  their  satisfaction  or  not. 

The  jury  found  a  verdict  against  the  defendant  upon  both  indict- 
ments. 

The  defendant  moved  for  a  new  trial,  because  of  the  ruling  and  in- 
structions of  the  judge,  and  because  the  verdict  as  to  the  presentation 
of  the  checks  by  the  defendants  was  not  supported  by  the  evidence. 

II.  H.  Fuller  supported  the  motion.  As  to  the  thiixl  false  pretence, 
he  cited  St.  1815,  c.  136  ;  3  Chit.  Crim.  Law,  997  ;  Allen's  case,  3  City 
Hall  Recorder,  118;  Stu3'vesant's  case,  4  City  Hall  Recorder,  156; 
People  V.  Conger,  1  Wheeler's  Crim.  Cas.  448  ;  People  v.  Dalton, 
2  Wheeler's  Crim.  Cas.  178;  Witchell's  case,  2  East's  P.  C.  830;  Story's 
case,  Russ.  &  Ryan,  81  ;  Freeth's  case,  ib.  127. 

Austin  (Attorne3'-General),  and  Parker  (District-Attorney),  for  the 
Commonwealth,  cited  Roscoe  on  Crim.  Ev.  (2d  ed.)  417  et  seq.  ; 
Lockett's  case,  1  Leach,  110;  Commonwealth  v.  Wilgus,  4  Pick.  177; 

2  East's  P.  C.  828  ;  Young  v.  The  King,  3  T.  R.  102  ;  Rex  v.  Jackson, 

3  Campb.  370. 

Morton,  J.,  delivered  the  opinion  of  the  court.  These  indictments 
are  founded  upon  St.  1815,  c.  136.  The  first  section  provides,  "  that 
all  persons  who  knowingly'  and  designedl}',  by  false  pretence  or  pre- 
tences, shall  obtain  from  any  person  or  persons  monej',  goods,  wares, 
merchandise  or  other  things,  with  intent  to  cheat  or  defraud  an}'  person 
or  persons  of  the  same,  shall  on  conviction "  be  punished,  &c.,  as 
therein  specified.  This  section,  which  is  a  copy  of  St.  30  Geo.  II.  c. 
24,  §  1,  is  revised  and  combined  with  some  provisions  in  relation  to 
other  similar  offences,  in  the  Revised  Stat.  c.  126,  §  32. 

To  constitute  the  offence  descrilied  in  the  statute  and  set  forth  in 
these  indictments,  four  things  must  concur  and  four  distinct  averments 
must  be  proved. 

1.  There  must  be  an  intent  to  defraud  ; 

2.  There  must  be  an  actual  fi'aud  committed  ; 

3.  False  pretences  must  be  used  for  the  purpose  of  perpetrating  the 
fraud  ;  and, 

4.  The  fraud  must  be  accomplished  bv  means  of  the  false  pretences 
made  use  of  for  the  purpose,  viz.,  they  must  be  the  cause  which  induced 
the  owner  to  part  with  his  i)roperty. 

It  is  very  obvious  that  three  of  the  four  ingredients  of  the  ci-ime  exist 
in  the  present  ease.  The  fraudulent  intent,  the  actual  perpetration  of 
the  fraud,  and  the  fact  that  some  of  the  pretences  used  were  the  means 
by  which  it  was  accomplished,  are  established  by  the  verdict  of  the 
jury.  And  although  the  prisoner's  counsel  has  objected  to  the  sufficienc}' 
of  the  evidence,  yet  we  see  no  reason  to  question  the  correctness  of  their 
decision.     It  only  remains  for  us  to  inquire,  whether  the  artifices  and 


SECT.  III.J  COMMONWEALTH   V.   DREW.  779 

deceptions  practised  by  the  defendant,  and  by  means  of  which  he 
obtained  the  money,  are  the  false  pretences  contemplated  by  the 
statute, 

Tlie  pretences  described  in  the  indictments  and  alleged  and  shown  to 
be  false,  are, 

1 .  Tliat  the  defendant  assumed  the  name  of  Charles  Adams  ; 

2.  That  he  pretended  that  he  wished  to  open  an  honest  and  fair  ac- 
count with  the  Hancock  Bank,  and  to  deposit  and  draw  for  money  in 
the  usual  manner  and  ordinary'  course  of  business  ; 

3.  That  he  pretended  that  the  checks  were  good,  and  that  he  had  in 
deposit  the  amount  for  which  thej'  were  drawn. 

The  first  is  clearly  a  false  pretence  within  the  meaning  of  the  statute  ; 
and  had  the  money  been  obtained  by  means  of  the  assumption  of  this 
fictitious  name,  there  could  be  no  doubt  of  the  legal  guilt  of  the 
defendant.  The  eminent  law\'er  who  filled  the  office  of  mayor  of  New 
York,  when  the  adjudication  referred  to  by  the  defendant's  counsel  was 
made,  says  the  false  pretences  must  be  the  sole  inducement  which 
caused  the  owner  to  part  with  his  property.  People  v.  Conger,  1 
"Wheeler's  Crira.  Cas.  448;  People  v.  Dalton,  2  ib.  161.  This  point  is 
doulitless  stated  too  strongl}- ;  and  it  would  be  more  correct  to  say, 
that  the  false  pretences,  either  with  or  without  the  cooperation  of  other 
causes,  had  a  decisive  influence  upon  the  mind  of  the  owner,  so  that 
without  their  weight  he  would  not  have  parted  with  his  propert3^ 
People  V.  Ha^-nes,  11  Wendell,  557.  But  in  this  case  the  assumed 
name,  so  far  from  being  the  sole  or  decisice  inducement,  is  clearly 
shown  to  have  had  no  influence  whatever.  The  bank  ofticers  did  not 
confound  the  defendant  with  Charles  Adams,  and  it  does  not  appear 
that  the  defendant  knew  that  there  was  an}-  other  person  by  that  name. 
He  never  claimed  any  credit  on  account  of  his  name,  and  tlie  coincidence 
might  have  been  accidental.  At  any  rate,  it  had  no  influence  upon  the 
credit  of  either,  nor  any  effect  upon  their  accounts  or  the  payment  of 
their  checks. 

2.  The  opening  and  keeping  an  account  with  the  Hancock  Bank 
might  have  been,  and  doubtless  was,  a  part  of  a  cunning  stratagem,  b}' 
which  the  defendant  intended  to  practise  a  fraud  upon  that  bank.  But 
the  business  was  done  and  the  account  kept  in  the  usual  manner.  Tlie 
defendant  made  his  deposits  and  drew  his  checks  like  other  customers 
of  the  bank.  He  made  no  representation  of  the  course  he  intended  to 
pursue,  and  gave  no  assurance  of  integrity  and  fair  dealing ;  and  we 
can  see  nothing  in  the  course  of  this  business  constituting  it  a  false 
pretence,  which  would  not  involve  the  account  of  any  depositor  who 
might  overdraw  in  the  same  categor}'. 

3.  The  pretence,  if  an}'  such  there  were,  that  the  check  was  good,  or 
that  the  defendant  had  funds  in  the  bank  for  which  he  had  a  right  to  draw, 
was  false.  He  had  no  such  funds.  Did  the  defendant  make  any  such 
pretence?  He  made  no  statement  or  declaration  to  the  officers  of  the 
bank.     He  merely  drew  and  presented  his  checks,  and  the}'  were  paid 


780  COMMONWEALTH    V.    DREW,  TcHAP.  X. 

This  was  done  in  the  usual  manner.  If,  then,  he  made  an^'  pretence,  it 
must  result  from  the  acts  themselves. 

AVluit  is  a  false  pretence,  within  the  meaning  of  the  statute?  It  may 
be  defined  to  be  a  representation  of  some  fact  or  circumstance,  calcu- 
lated to  mislead,  which  is  not  true.  To  give  it  a  criminal  character 
there  must  be  a  sciefiter  and  a  fraudulent  intent.  Although  the  lan- 
guage of  the  statute  is  ver}'  broad,  and  in  a  loose  and  genei'al  sense 
would  extend  to  ever}'  misrepresentation,  however  absurd  or  irrational, 
or  however  easily  detected,  yet  we  think  the  true  principles  of  con- 
struction render  some  restriction  indispensable  to  its  proper  application 
to  the  principles  of  criminal  law  and  to  the  advantageous  execution  of 
the  statute.  We  do  not  mean  to  sa}'  that  it  is  limited  to  cases  against 
which  ordinary  skill  and  diligence  cannot  guard,  for  one  of  its  principal 
objects  is  to  protect  the  weak  and  credulous  from  the  wiles  and  strata- 
gems of  the  artful  and  cunning  ;  but  there  must  be  some  limit,  and  it 
would  seem  to  be  unreasonable  to  extend  it  to  those  who,  having  the 
means  in  their  own  hands,  neglect  to  protect  themselves.  It  may  be 
difficult  to  draw  a  precise  line  of  discrimination  applicable  to  every 
possible  contingency,  and  we  think  it  safer  to  leave  it  to  be  fixed  in 
each  case  as  it  may  occur.  2  East's  P.  C.  828  ;  Young  v.  The  King,  3 
T.  R.  98. 

It  is  not  the  polic}'  of  the  law  to  punish  criminalh'  mere  private 
wrongs  ;  and  the  statute  ma}-  not  regard  naked  lies  as  false  pretences. 
It  requires  some  artifice,  some  deceptive  contrivance,  which  will  be 
likely  to  mislead  a  person  or  throw  him  off  his  guard.  He  may  be 
weak  and  confiding,  and  his  very  imbecilit}'  and  credulit}'  should  receive 
all  practical  protection.  But  it  would  be  inexpedient  and  unwise  to 
regard  every  private  fraud  as  a  legal  crime.  It  would  be  bettei-  for 
societ}'  to  leave  them  to  civil  remedies.  Roscoe  on  Crim.  Ev.  (2d  ed.) 
419  ;  Goodhall's  case,  Russ.  &  Ryan,  461. 

The  pretence  must  relate  to  past  events.  Any  representation  or 
assurance  in  relation  to  a  future  transaction  may  be  a  promise  or  cove- 
nant or  warranty,  but  cannot  amount  to  a  statutory  false  pretence. 
The,y  afford  an  opportunity  for  inquiring  into  their  truth,  and  there  is  a 
remed}'  for  their  breach,  but  it  is  not  by  a  criminal  prosecution.  Stu^ve- 
sant's  case,  4  City  Hall  Recorder,  156  ;  Roscoe  on  Crim.  Ev.  (2d  ed.) 
422  ;  Rex  v.  Codrington,  1  Car.  &  Payne,  661.  The  onl}'  case,  Young 
V.  The  King,  3  T.  R.  98,  which  has  been  supposed  to  conflict  with  this 
doctrine,  clearly  supports  it.  The  false  pretence  alleged  was,  that  a 
bet  had  been  made  upon  a  race  which  was  to  be  run.  Tlie  contingency 
which  was  to  decide  the  bet  was  future,  but  the  making  of  the  bet 
was  past.  The  representation  which  turned  out  to  be  false  was,  not 
that  a  race  would  be  run,  but  that  a  bet  had  been  made.  The  false 
pretence,  therefore,  in  this  case,  related  to  an  event  already  completed 
and  certain,  and  not  to  one  which  was  thereafter  to  happen  and  conse- 
quently uncertain  ;  and  the  decision  was  perfectly  consistent  with  the 
doctrine  and  law  here  laid  down. 


SECT.  IlLJ  COMMONWEALTH    V.    DREW.  781 

A  false  pretence,  being  a  misrepresentation,  may  be  made  in  any  of 
tiie  ways  in  wliicli  ideas  may  be  communicated  from  one  person  to 
another.  It  is  true  tliat  tlie  eminent  jurist  before  referred  to  in  tlie 
cases  cited  lield  tliat  it  coultl  be  made  oul}'  by  verbal  comnuiuications, 
either  written  or  oral.  If  this  be  correct,  no  act  or  gestures,  however 
significant  and  impressive,  could  come  within  the  statute  ;  and  mutes, 
though  capable  of  conveying  their  ideas  and  intentions  in  the  most  clear 
and  forcible  manner,  could  hardly  be  brought  within  its  prohibition. 
Can  it  make  any  dilference  in  law  or  conscience  whetlier  a  false  repre- 
sentation be  made  b}'  words  or  b}-  the  expressive  motions  of  the  dumb? 
Each  is  a  language.  Words  are  but  the  signs  of  ideas,  and  if  the 
ideas  are  conveyed,  the  channel  of  communication,  or  the  garb  in 
which  the}'  are  clothed,  is  but  of  secondar}-  importance.  And  we  feel 
bound  to  dissent  from  this  part  of  these  decisions.  In  this  we  are 
supported  bv  the  English  cases.  Rex  o.  Storj-,  Russ.  &  Ryan,  81  ; 
Rex  /'.  Freeth,  ib.  127. 

The  representation  is  inferred  from  the  act,  and  the  pretence  may  be 
made  bj-  implication  as  well  as  by  verbal  declaration.  In  the  case  at 
bar  the  defendant  presented  his  own  checks  on  a  bank  with  which  he  ^ 

had  an  account.     What  did  this  imply?     Not  necessarily  that  he  had  y^ 

funds  there.  Overdrafts  are  too  frequent  to  be  classed  with  false  pre-  -' 
tences.  A  check,  like  an  order  on  an  individual,  is  a  mere  request  to 
pay  ;  and  the  most  that  can  be  inferred  from  passing  it  is,  that  it  will 
be  paid  when  presented,  or  in  other  words  that  the  drawer  has  in  the 
hands  of  the  drawee  either  funds  or  credit.  If  the  drawer  passes  a 
check  to  a  third  person,  the  language  of  the  act  is,  that  it  is  good  and 
will  be  duly  honored ;  and  in  such  case,  if  he  knew  that  he  had 
neitlier  funds  nor  credit,  it  would  probably  be  holden  to  be  a  false 
pretence. 

In  the  case  of  Stuyvesant,  4  City  Hall  Recorder,  156,  it  was  decided 
that  the  drawing  and  passing  a  check  was  not  a  false  pretence.  But  in 
Rex  V.  Jackson,  3  Campb.  370,  it  was  ruled  that  the  drawing  and  pass- 
ing a  check  on  a  banker  with  whom  the  drawer  had  no  account  and 
which  he  knew  would  not  be  paid,  was  a  false  pretence  within  the 
statute.  This  doctrine  appears  to  be  approved  b}-  all  the  text  writers, 
and  we  are  disposed  to  adopt  it.     Roscoe  on  Crim.  Ev.  (2d  ed.)  419. 

But  to  bring  these  cases  within  the  statute,  it  must  be  shown  that  the 
drawer  and  utterer  knew  that  the  check  would  not  be  paid,  and  in  the 
cases  cited  it  appeai'ed  that  he  had  no  account  with  the  banker.  In 
these  respects  the  case  at  bar  is  ver}-  distinguishable  from  the  cases 
cited.  If  the  checks  in  question  had  been  passed  to  a  third  pei'son,  it 
could  not  be  said  that  the  defendant  knew  that  the}'  would  not  be  paid. 
On  the  contrary,  he  had  an  open  account  with  the  bank,  and  although 
he  knew  there  was  nothing  due  to  him,  yet  he  might  suppose  that  they 
would  be  paid  ;  and  the  fact  that  he  presented  them  himself,  shows 
that  he  did  not  know  that  they  would  be  refused. 

The  defendant  presented  the  checks  himself  at  the  counter  of  the 


'\)- 


782  COMMONWEALTH    V.    NORTON.  [CHAP.  X. 

bank.  The}'  were  mere  requests  to  pay  to  hira  the  amount  named  in 
them,  couched  in  the  appropriate  and  only  language  known  there,  and 
addressed  to  the  person  whose  peculiar  province  and  duty  it  was  to 
know  whether  the}'  ought  to  be  paid  or  not.  He  complied  with  the 
requests,  and  charged  the  sums  paid  to  the  defendant,  and  thus  created 
a  contract  between  the  parties.  Upon  this  contract  the  bank  must  rely 
for  redress. 

This  case  lacks  the  elements  of  the  English  decisions;  and  we 
think  it  would  be  an  unwise  and  dangerous  construction  of  the  statute 
to  extend  it  to  transactions  like  this.  The  case  may  come  pretty  near 
the  line  which  divides  private  frauds  from  indictable  offences  ;  and  at 
first  we  were  in  doubt  on  which  side  it  would  fall.  But,  upon  a  careful 
examination,  we  are  well  satisfied  that  it  cannot  properly  be  brought 
within  the  statute.  Verdict  set  aside  and  new  ti'ial  granted.^ 


COMMONWEALTH   v.   NORTON. 
Supreme  Judicial  Court  of  Massachusetts.     1865. 

[Reported  11  Allen,  266.] 

Indictment  for  obtaining  money  under  false  pretences.  The  first 
count  charged  that  the  defendant  falsely  pretended  to  Charles  Conuell 
that  a  few  days  before  he,  the  defendant,  was  in  Connell's  place  of 
business  and  had  two  drinks,  and  gave  to  Council  five  dollars,  from 
which  Connell  was  to  take  twenty  cents,  but  that  Council  did  not  re- 
turn any  change  ;  and  Connell,  believing  said  false  representations, 
and  being  deceived  and  induced  thereby,  paid  to  Norton  four  dollars 
and  eighty  cents  ;  whereas  in  truth  Norton  had  not  given  the  five 
dollars  to  Connell,  and  the  various  representations  of  Norton  were  all 
false. 

There  were  three  other  counts  charging  similar  transactions  with 
other  and  different  persons. 

The  defendant  pleaded  guilty  to  this  indictment  in  the  Superior  Court, 
and  thereupon  Lord,  J.,  deeming  the  questions  of  law  arising  thereon, 
as  to  whether  the  allegations  of  the  indictment  constituted  an  indictable 
offence,  so  important  aud  doubtful  as  to  require  the  decision  of  this 
court,  reported  the  same,  by  the  consent  and  desire  of  the  defendant. 

No  counsel  appeared  for  the  defendant. 

Reed,  A.  G.,  for  the  Commonwealth,  cited  Commonwealth  v.  Drew, 
19  Pick.  182;  The  People  v.  Johnson,  12  Johns.  298;  Young -u.  The 
King,  3  T.  R.  102  ;  Rex  v.  Wheatly,  2  Burr.  1128. 

Dewey,  J.     It  seems  to  us  that  the  present  case  is  one  which  the 

1  See  Rex  v.  Parker,  7  C.  &  P.  825  ;  People  v.  Wasservogle,  77  Cal.  17.3;  Barton 
f  People.  135  111.  405.     Compare  Com.  i-.  Schwartz  (Ky.)  18  S.  W.  358.  —  Ed. 


SECT.  III.]  COMMONWEALTH   V.    WIIITCOMB.  783 

court  may  properly  consider  as  not  embraced  Avitliin  the  intention  of 
the  framers  of  the  statute  punishing  the  obtaining  of  goods  by  wilfully 
false  pretences.  The  case  as  presented  by  the  indictn)ent  is  the  naked 
case  of  a  wilfully  false  allirmatiou,  made  to  a  party  who  had  like 
means  of  knowledge  whether  the  allirmation  was  true  or  false  as  the 
party  who  made  it.  The  indictment  alleges  the  false  statements  to 
have  been  that  the  same  person  alleged  to  have  been  defrauded  had 
on  a  previous  day  named  received  of  the  defendant  a  certain  bankbill 
for  the  payment  of  certain  "  drinks"  furnished  to  the  defendant,  and 
had  not  given  back  any  change.  The  case  was  one  of  a  demand  of 
money  as  of  right,  growing  out  of  what  might  have  been  an  illegal  sale 
of  liquors,  and  was  yielded  to  by  the  seller,  he  being  personally  connected 
with  all  the  alleged  facts,  and  voluntarily  submitting  to  the  demand 
thus  made  upon  him.  It  was  said  by  this  court  in  Commonwealth  c. 
Drew,  19  Pick.  184:,  that  "  although  the  language  of  the  statute  (St. 
1815,  c.  136)  is  very  broad,  and  in  a  loose  and  general  sense  would 
extend  to  every  misrepresentation,  however  absurd  or  irrational  or 
however  easily  detected  ;  yet  we  think  the  true  principles  of  construc- 
tion render  some  restriction  indispensable  to  its  proper  application. 
...  It  may  be  difficult  to  draw  a  precise  line  of  discrimination  appli- 
cable to  every  possible  contingency,  and  we  think  it  safer  to  leave  it 
to  be  fixed  in  each  case  as  it  may  occur." 

These  remarks  apply  equally  to  Gen.  Sts.  c.  161,  §  54,  and  in  the 
opinion  of  the  court  the  facts  alleged  in  this  indictment  do  not  present 
a  case  which  should  be  held  to  fall  within  the  spirit  and  purpose  of 
the  statute.  "We  are  aware  that  some  of  the  English  judges  have  given 
a  more  extended  construction  of  their  statute  in  cases  that  have  there 
arisen.  Judgment  arrested.^ 


COMMONWEALTH  v.  WHITCOMB. 
Supreme  Judicial  Court  of  Massachusetts.     1871. 

[Reported  107  Massachusetts,  486.] 

Chapman,  C.  J.  By  the  Gen.  Stats,  c.  161,  §  54,  whoever  "■  design- 
edly, by  a  false  pretence  or  by  a  privy  or  false  token,  and  with  intent 
to  defraud,  obtains  from  another  person  any  propert}',"  &c.,  "  shall  be 
punished,"  &c.  The  defendant  falsely  pretended  to  the  Reverend  Mr. 
Peck,  a  Methodist  clergyman,  that  he  was  himself  a  Methodist  clergy- 
man, and  pastor  of  a  Methodist  church  in  Waterville,  Kansas,  and  that 
on  the  preceding  Lord's  day  he  had  preached  in  the  church  of  the  Rev- 
erend Charles  Fowler,  of  Chicago ;  that  he  was  poor,  penniless,  and 

1  Contra  Reg.  v.  Woolley,  1  Den.  C.  C.  559 ;  Reg.  v.  Jessop,  7  Cox  C.  C.  399.  See 
Reg  V    Coulson,  1  Deu.  0.  C.  li'ji;.     Compare  Com.  v.  Lee,  149  Mass  i8i.  —  Ed. 


784  COMMONWEALTH    V.    HAHKINS.  [CHAP.  X. 

utterly  destitute,  and  had  that  daj'  been  robbed  of  all  his  money  ;  and 
he  thereby  obtained  of  Mr.  Peck  six  dollars  as  a  charity.  He  after- 
wards admitted  that  these  representations  were  false.  His  only  defence 
Is,  that  the  statute  does  not  include  cases  where  the  money  is  parted 
•ivitli  as  a  charitable  donation. 

But  it  is  obvious  that  the  case  comes  within  the  words  of  the  statute, 
(t  comes  also  within  the  reason  of  the  statute.  TJiere  is.as..much  reasoa 
for  protecting  persons  who  part  with  their  money  from  motives  of  benev- 
olence, as  those  who  part  with  it  from  motives  of  self-interest.  The 
law  favors  charity  as  well  as  trade,  and  should  protect  the  one  as  well 
as  the  other  from  imposture  by  means  of  false  pretences.  Obtaining 
money  by  means  of  letters  begging  for  charity  on  false  pretences  is  held 
to  be  within  the  P^nglish  statute  (7  &  8  Geo.  IV.  c.  29,  §  53),  which  is 
quite  similar  to  ours.  Regina  v.  Jones,  1  Denison,  551  ;  Regina  v. 
Hensler,  11  Cox  Crim.  Cas.  570. 

A  contrary  doctrine  has  been  held  in  New  York.  People  v.  Clough, 
17  Wend.  351.  The  court  admitted  that  the  crime  was  of  a  dark  moral 
grade,  and  was  within  the  words  of  the  statute  of  New  York,  which  was 
copied  from  the  English  statute  of  30  Geo.  II.  c.  24.  They  adopted 
that  construction  chiefly'  on  the  ground  that  the  preamble  to  the  statute 
referred  to  trade  and  credit.  But  our  statute,  like  the  existing  English 
statute,  refers  to  no  such  matter,  and  is  not  restricted  by  any  preamble. 

Exceptions  overruled. 


COMMONWEALTH  v.  HARKINS. 
\     Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  128  Massachusetts,  79.] 

Colt,  J  A  The  defendant  was  indicted  for  obtaining  money  from  the 
cit}-  of  Lynn  by  false  pretences.  He  moved  to  quash  the  indictment  on 
the  ground  that  it  did  not  set  forth  an  offence  known  to  the  law. 

It  is  alleged  in  substance  that  the  defendant  falselj'  represented  to 
the  eit}"  of  Lynn,  through  its  agent,  the  city  solicitor,  that  a  street 
which  the  city  was  bound  to  repair  had  been  suffered  to  be  out  of  repair, 
and  that  the  defendant,  while  travelling  thereon  with  due  care,  was  in- 
jured by  the  defect ;  that  the  defendant  at  the  same  time  exhibited  an 
injuiy  to  his  foot  and  ankle,  and  represented  that  it  was  caused  b}'  the 
alleged  defect.  It  is  further  alleged  that  the  city  and  its  solicitor  were 
deceived  b}'  these  representations,  and,  being  induced  thereb}',  agreed 
to  the  entry  of  a  judgment  against  the  cit}'  in  a  suit  then  pending  in 
favor  of  the  defendant  in  this  case  ;  and  upon  the  entry  thereof  paid  th» 
amount  of  the  same  to  him.     It  is  not  alleged  that  the  suit  was  to 

1  Tha  opinions  only  are  given  ;  thfty  snflBc'pntlj  statp  the  case. 


SECT.  III.]  COMMONWEALTH   V.    IIARK'INS.  785 

recover  damages  on  account  of  the  defendant's  injury  from  the  alleged 
defect ;  but  we  assume  that  this  was  so,  for  otherwise  there  could  be  no 
possible  connection,  immediate  or  remote,  between  the  pretences 
charged  and  the  payment  of  the  money  in  satisfaction  of  the  judgment 
recovered. 

In  the  opinion  of  a  majority  of  the  court,  this  indictment  is  defective. 
The  facts  stated  do  not  constitute  the  offence  of  obtaining  money  by 
false  pretences.  The  allegations  are,  that  an  agreement  that  judgment 
should  be  rendered  was  obtained  by  the  pretences  used,  and  that  the 
monev  was  paid  by  the  city  in  satisfaction  of  that  judgment.  It  is  not 
alleged  that,  after  the  judgment  was  rendered,  any  false  pretences  were 
used  to  obtain  the  money  due  upon  it;  and,  even  with  proper  allega- 
tions to  that  effect,  it  has  been  held  that  no  indictment  lies  against  one 
for  obtaining  by  such  means  that  which  is  justly  due  him.  There  is 
no  legal  injury  to  the  party  who  so  pa}-s  what  in  law  he  is  bound  to 
pay.  Commonwealth  r.  McDuff)-,  126  Mass.  467  ;  People  v.  Thomas, 
3  Hill,  16!) ;  Rex  v.  \YiHiams,  7  Car.  &  P.  354.  A  judgment  rendered 
by  a  court  of  competent  jurisdiction  is  conclusive  evidence  between  the 
parties  to  it  that  the  amount  of  it  is  justl}-  due  to  the  judgment  credi- 
tor. Until  the  judgment  obtained  b}-  the  defendant  was  reversed,  the 
city  was  legall}'  bound  to  pay  it,  notwithstanding  it  may  have  then  had 
knowledge  of  the  original  fraud  by  which  it  was  obtained  ;  and  with  or 
without  such  knowledge  it  cannot  be  said  that  the  money  paid  upon  it 
was  in  a  legal  sense  obtained  b}-  false  pretences,  which  were  used  only 
to  procure  the  consent  of  the  city  that  the  judgment  should  be  rendered. 

The  indictment  alleges  the  fact  of  a  judgment  in  favor  of  the  defend- 
ant, which  if  not  conclusive  as  between  the  parties  to  this  criminal  pros- 
ecution, is  at  all  events  conclusive  between  the  parties  to  the  transac- 
tion. To  hold  that  the  statute  which  punislies  criminalh-  the  obtaining 
of  propert}'  b}'  false  pretences,  extends  to  the  case  of  a  payment  made 
b}- a  judgment  debtor  in  satisfaction  of  a  judgment,  when  the  evidence 
onl}-  shows  that  the  false  pretences  were  used  to  obtain  a  judgment,  as 
one  step  towards  obtaining  the  monev,  would  practically  make  all  civil 
actions  for  the  recovery  of  damages  liable  in  such  cases  to  revision  in 
the  criminal  courts,  and  subject  the  judgment  creditor  to  prosecution 
criminall}'  for  collecting  a  valid  judgment,  whether  the  same  was  paid 
in  mone}'  or  satisfied  by  a  lev}'  on  propert}-. 

SouLE,  J.  I  am  obliged  to  differ  from  the  majority'  of  the  court,  and 
am  authorized  to  state  that  the  Chief  Justice  and  Mr.  Justice  Ames 
concur  with  me.  As  the  case  involves  questions  of  importance  in  the 
administration  of  public  justice,  it  has  seemed  to  us  proper  to  state  our 
views  of  them.  In  doing  thi.s,  it  is  necessary  to  discuss  several  points 
which  are  raised  by  the  exceptions,  but  are  not  treated  of  in  the  opinion 
of  the  court,  because  they  have  become  immaterial  to  the  decision  which 
has  been  reached  b}'  the  majorit}'. 

The  indictment  sets  forth  that  the  defendant,  with  intent  to  cheat  and 
defraud,  made  certain  false  representations  and  pretences,  as  to  matters 


786  COMMONWEALTH   V.    HARKINS.  [CHAP,  X. 

within  his  knowledge  and  relating  to  existing  facts  as  well  as  to  past 
transactions,  concerning  which  neither  the  cit}'  of  Lynn  nor  its  agent 
had  the  means  of  knowing  the  truth,  and  tliat,  b}'  means  of  these  repre- 
sentations and  pretences,  the  cit}-,  believing  them  to  be  true,  was 
induced  to  and  did  part  with  its  money  to  the  defendant.  It  further 
sets  forth  that  the  defendant  received  the  money  by  means  of  the  false 
pretences,  and  with  intent  to  cheat  and  defraud  the  cit}-  of  Lynn,  and 
that  the  several  representations  and  pretences  were  not  true.  It  there- 
fore charges  an  offence.  Commonw^ealth  v.  Hooper,  104  Mass.  549  ; 
Commonwealth  v.  Parmenter,  121  Mass.  354. 

The  additional  allegations  as  to  the  consent  to  the  entry  of  judgment 
and  the  satisfaction  of  the  judgment  are  merely  a  narration  of  the 
methods  by  which  the  parties  proceeded  in  paying  and  receiving  the 
money,  and  are  wholly  unnecessary,  but  they  do  not  charge  another 
offence,  nor  make  the  indictment  bad  for  duplicity.  The  obtaining  of 
the  money  by  false  pretences  is  the  gist  of  the  offence,  not  the  obtaining 
of  the  judgment. 

The  fact  that  the  judgment  obtained  by  the  defendant  remains  unre- 
versed constitutes  no  objection  to  the  indictment.  It  is  true  that,,  as  a 
matter  of  public  policy,  an  unreversed  judgment  is  conclusive  between 
the  parties  and  their  privies,  in  accordance  Avith  the  maxim,  Interest 
reipiiblicce  ut  sit  finis  litiiim.  And  this  principle  goes  so  far  that  one 
cannot  sustain  an  action  against  anotlier  for  obtaining  a  judgment  against 
him  by  means  of  conspiracy  and  fraud,  if  he  had  an  opportunity  to  be 
heard  at  the  trial  of  the  cause  in  which  the  judgment  was  obtained. 
Castrique  v.  Behrens,  3  E.  &  E.  709  ;  Huffer  v.  Allen,  L.  R.  2  Ex.  15. 

But  it  is  equally  true  that  a  judgment  is  conclusive  only  between  the 
parties  and  their  privies,  and  that  strangers  are  not  bound  nor  affected 
by  it.  To  the  indictment  the  Commonwealth  is  a  part}',  but  was  a 
stranger  to  the  action  between  the  city  of  Lynn  and  the  defendant,  in 
which  the  judgment  was  recovered.  That  judgment  is,  therefore,  no 
evidence  against  the  Commonwealth  that  the  defendant  was  entitled  to 
recover  anytliing  of  the  city.  It  has  no  bearing  on  the  case  at  bar, 
except  as  "being  a  part  of  the  machinery  employed  in  obtaining  the 
money  wrongfully.  Its  existence  is  no  bar  to  prevent  the  Common- 
wealth from  showing,  in  its  prosecution  of  crime,  that  it  and  the  money 
were  obtained  by  false  pretences.  To  hold  otherwise  would  be  to  pro- 
vide a  shield  for  the  criminal  in  his  own  crime.  There  is  nothing  in 
this  view  of  the  law,  which  conflicts  with  the  decision  in  the  recent  case 
of  Commonwealth  v.  McDuffy,  126  Mass.  467.  It  was  there  held,  that 
one  who  obtains  only  what  is  due  him  by  false  pretences  commits  no 
punishable  offence.  It  was  not  held  that  the  Commonwealth  was 
estopped  to  prove  the  truth,  by  a  judgment  to  which  it  was  not  a  party. 
The  general  doctrine,  that  only  parties  and  privies  are  concluded  by  a 
judgment,  is  too  familiar  to  require  the  citation  of  authorities  in  its 
support.  An  application  of  it  peculiarly  pertinent  to  the  case  at  bar 
was  made  in  The  Duchess  of  Kingston's  case,  20  Howell's  St.  Tr.  355. 


SECT.  III.J  COMMONWEALTH    V.    HAKKINS.  787 

The  indictment  is  not  defective  on  the  ground  of  remoteness  of  the 
false  representations  from  the  obtaining  of  the  money.  Ordinarily'  the 
question  of  remoteness  is  one  for  the  jury,  and  can  be  presented  to 
this  court  only  on  a  report  of  the  evidence  after  a  refusal  b}-  the  presid- 
ing judge  to  rule  that  the  evidence  will  not  warrant  a  conviction.  As 
an  objection  to  the  indictment,  it  is  in  substance;  that  tlie  indictment 
shows  that  the  money  was  obtained  on  a  valid  judgment,  and  therefore 
cannot  be  held  to  have  been  obtained  bj-  the  false  pretences.  But  this 
point  is  not  tenable.  The  test  is  the  direct  connection  between  the  pre- 
tence and  the  payment  of  the  money.  There  was  no  purpose  in  either 
part}-  to  the  transaction  that  the  matter  should  go  to  the  extent  of 
entering  up  the  judgment,  and  rest  there  ;  the  judgment  was,  in  and  of 
itself,  of  no  importance.  It  was  onl}-  a  means  to  an  end,  and  it  was 
for  the  jury  to  say  whether  the  false  pretences  were  an  inducement  for 
the  payment. 

In  the  case  of  Regina  o.  Gardner,  Dearsly  &  Bell,  40,  and  7  Cox  C. 
C.  136,  cited  by  the  defendant,  it  was  held  that  the  false  pretence  was 
exhausted  by  obtaining  a  contract  for  lodging,  and  did  not  extend  to 
the  contract  for  board  also,  made  after  the  defendant  had  been  a  lodger 
with  the  prosecutor  for  more  than  a  week.  In  Regina  v.  Brvan,  2  F. 
&  F.  567,  board  and  lodging  had  been  obtained  by  means  of  false  pre- 
tences, and,  sometime  after  the  contract  therefor,  the  prisoner  borrowed 
sixpence  of  the  person  with  whom  he  had  made  the  contract  and  was 
lodging,  and  it  was  held  that  the  money  was  not  obtained  by  the  false 
pretence. 

But  in  Regina  y.  Martin,  L.  R.  1  C.  C.  56,  it  was  held  that  the  ques- 
tion of  remoteness  was  for  the  jur^-,  and  that  a  conviction  was  warranted 
when  the  prisoner  had  ordered  a  van  to  be  made,  under  the  false  pre- 
tence that  he  acted  for  the  Steam  Laundry  Company  of  Aston,  which 
he  represented  to  be  composed  of  leading  men  of  Birmingham,  and 
before  it  was  delivered  to  him  countermanded  the  order,  and  afterward 
agreed  to  receive  it  if  certain  alterations  were  made  in  it,  which  were 
made,  and  it  was  subsequently  delivered.  In  that  case  it  is  said  that, 
in  order  to  justify  a  conviction,  there  must  be  a  direct  connection  be- 
tween the  pretence  and  the  delivery  of  the  chattel,  and  that  whether 
th«re  is  such  a  connection  or  not  is  a  question  for  the  jury  ;  and,  fur- 
ther, that  since  the  cases  of  Regina  v.  Abbott,  1  Denison,  273,  and 
Regina  l\  Burgon,  Dearsly  &  Bell,  11,  it  is  impossible  to  contend  seri- 
ously that  the  case  is  not  within  the  statute,  because  the  chattel  is 
obtained  under  a  contract  induced  by  the  false  pretence. 

The  false  representations  and  pretences  set  forth  in  the  indictment 
are  of  such  a  character  as  to  bring  the  transaction  within  the  statute. 
It  is  sometimes  said  that  a  naked  lie  is  not  within  the  statute  ;  and,  as 
applied  to  particular  cases,  this  is  true  ;  as  when  one  falsely  represents 
to  a  saloon-keeper  that,  a  few  days  before,  he  gave  the  keeper  five 
dollars  out  of  which  to  take  twenty  cents  in  paj-ment  for  drinks,  and 


788  COMMONWEALTH   V.   HAKKINS.  [cHAP.  X. 

that  the  keeper  did  not  return  any  change  ;  Commonwealth  v.  Norton, 
1 1  Allen,  266  ;  or  where  one  draws  his  check  on  a  bank  in  which  he 
has  no  money,  and  presents  it  at  the  bank  for  payment.  Common- 
wealth V.  Drew,  10  Pick.  179.  In  those  cases  the  lie  is  told  to  one  who 
has  the  same  means  with  the  liar  of  knowing  what  the  fact  is.  In  the 
case  last  cited  it  was  said  that  passing  a  check  drawn  on  a  banker  with 
whom  the  drawer  has  no  account,  and  which  he  knew  would  not  be 
paid,  would  be  within  the  statute  ;  and  the  English  decisions  are  so. 
Tlie  ditference  between  the  two  is  merely  that  in  one  case  the  lie  or  false 
pretence  is  made  to  one  who  is  in  a  situation  to  know  the  facts,  and  in 
the  other  to  one  who  is  not  in  such  situation.  The  true  rule  seems  to 
be,  that  a  case  is  within  the  statute  if  the  alleged  false  pretence  is  an 
intentionally  false  representation  as  to  an  existing  fact  or  past  trans- 
action, made  to  one  who  has  not  the  means  of  knowing  the  truth  in  the 
premises,  for  the  purpose  of  inducing  him  thereby  to  part  with  his 
pro[)erty. 

This  case  comes  up  on  exceptions  to  a  refusal  to  quash  the  indictment, 
and  it  is  argued  that  there  was  no  such  relation  of  trust  and  confidence 
between  the  defendant  and  the  city  of  Lynn  as  would  justifj-  a  belief  in 
the  representations  made,  and  la}'  a  foundation  for  an  indictment  under 
the  statute.  But,  as  has  already  been  said,  there  are  suflicient  allega- 
tions to  constitute  a  good  indictment,  and  the  question  whether  they 
were  proved  or  not  is  one  of  evidence,  and  not  of  pleading.  Moreover, 
it  is  not  true,  as  matter  of  law,  that  one  who  is  negotiating  a  settlement 
of  an  alleged  claim  for  damages  cannot  bring  himself  within  the  statute 
b}'  making  false  representations  and  obtaining  mone}'  thereb}'.  In 
Regina  v.  Copeland,  Car.  &  M.  516,  the  prisoner,  a  married  man,  who 
had  obtained  a  promise  of  marriage  from  a  single  woman  which  she 
refused  to  fulfil,  threatened  her  wath  an  action  at  law  for  breach  of 
her  promise,  and  added  that  he  could  thereb}-  take  half  her  foi'tune 
from  her,  and  she,  believing  the  statement  and  threat,  paid  him  one 
hundred  pounds  sterling.  The  prisoner  was  convicted,  and  tiie  convic- 
tion was  sustained  by  Lord  Denman  and  Mr.  Justice  Maule. 

The  question  whether  the  false  pretences  were  believed  and  induced 
the  payment  is  for  tlie  jur}-.  To  quash  the  indictment  on  the  ground 
that  the  circumstances  of  the  transaction  would  not  justify  a  conviction, 
would  be  to  quasli  it  for  matters  dehors  the  record. 

That  the  wrong  is  a  private  one  is  no  objection  to  the  prosecution, 
althougli  it  has  been  said  in  manv  cases  that  the  statute  is  not  intended 
for  the  punishment  of  ever}'  private  wrong.  In  all  the  cases  above 
cited  in  which  a  conviction  was  sustained  the  wrong  was  a  private  one, 
in  the  same  sense  as  in  the  case  at  bar ;  it  is  a  public  wrong  in  this,  as 
in  those  cases,  in  that  it  is  within  the  statute  which  provides  for  pun- 
ishment of  the  wrongdoer.  The  purpose  of  the  statute  was  to  extend 
the  punishment  to  cases  which  were  not  reached  by  the  common  law, 
and  its  language  is  broad  and  comprehensive.     Its  operation  ought  not 


SECT.  III.  J  liEGINA   V.    LARNER.  789 

to  be  limited  by  phrases  of  indefinite  meaning  which  fail  to  state  any 
principle  of  construction. 

Exceptions  sustained. 


REGINA  V.  LARNER. 

Central  Criminal  Court.     1880. 
[Reported  14  Cox.  C.  C.  497.] 

William  Larner  was  charged  under  an  indictment  containing 
counts  for  false  pretences,  forgery,  and  uttering.  The  first  count  set 
forth  the  false  pretences  as  follows:  "That  the  said  William  Larner 
was  member  of  a  certain  club  called  and  known  as  the  Myddleton 
Swimming  and  Athletic  Club,  and  that  a  certain  letter  which  he,  the 
said  William  Larner,  had  caused  to  be  received  by  one  Alfred  Ernest 
Endin,  had  then  been  written  and  sent  by  one  Henry  Green,  the  secre- 
tary- of  the  said  club,  and  that  he,  the  said  William  Larner,  as  member 
and  competitor  in  certain  club  swimming  races  and  matches  b}'  mem- 
bers of  the  said  club,  had  been  allowed  to  start  from  the  starting  point 
twenty-five  seconds  before  certain  other  competitors." 

Purcell  for  the  prosecution. 

KpAth  Frith  and  Hundle  Levey  for  defendant. 

On  the  23rd  day  of  August  a  swimming  handicap  took  place  at  the 
Surrey  County  Baths.  Entries  were  to  be  made  previously  to  Alfred 
Endin,  Esq.,  and  competitors  to  be  handicapped  b}'  qualified  persons. 
A  competitor's  ticket  was  issued  by  Mr.  Endin  to  each  accepted  entiy. 
The  length  of  the  course  was  100  3'ards,  and  there  being  a  good  many 
entries,  the  race  was  swum  in  heats. 

A  programme  was  printed  and  circulated,  containing,  amongst  other 
matters,  the  names  of  the  competitors  and  the  arrangement  of  the 
various  heats,  and  on  that  programme  appeared  the  name  of  W.  Larner, 
to  whom  a  start  of  twent}'  seconds  had  been  assigned. 

Some  days  before  the  issuing  of  the  programme,  Mr,  Endin  received 
the  following  letter : 

Nelson  Club,  90,  Dean-street,  Oxford-street. 
August  19,  1880. 
Sir, —  I  inclose  entrance  fee  for  another  entr}'  for  your  100  yards 
handicap.     W.  Larner  (Middleton  Swimming   and  Athletic   Club)    in 
Club  races  receives  twenty-five  seconds  from  scratch. —  I  remain,  sir, 

Yours  respectfully, 

H.  Green,  Hon.  Sec. 


790  EEGINA   V.   LARNER.  [CHAP.  X. 

Another  letter  of  the  same  khid  had  been  received  by  Mr.  Endin, 
entering  one  Binns  for  the  same  race.  The  letters  were  received  in  the 
usual  course  through  the  Post  Office.  The  two  entries  of  Larner  and 
Binns  were  accepted,  and  the  entrance  fee  of  2s.  6c?.  each  paid.  Mr. 
Endin  stated  that  he  knew  nothing  about  Larner  or  his  accomplish- 
ments as  a  swimmer ;  that  he  received  his  entry  in  consequence  of  the 
representations  contained  in  the  letter,  and  that  the  start  of  twenty 
seconds  was  apportioned  to  him  for  the  like  reason.  He  further  stated 
that  he  handed  Larner  a  competitor's  ticket ;  that  Larner  swam  in 
the  competition,  and  after  being  second  in  his  own  heat,  won  the  final 
easily.  It  was  believed  that  Larner  could  have  won  the  race  from 
scratch. 

For  the  prisoner  it  was  objected  that  the  false  pretences  were  too 
remote,  that  if  he  obtained  anything  thereby,  it  was  the  competitor's 
ticket,  and  not  the  cup  ;  that  the  cup  was  obtained  b\'  his  own  bodily 
activit}' ;  and  that  the  case  fell  within  Reg.  v.  Gardner  (1  Dears.  &  B. 
C.  C.  p.  40  ;  7  Cox  C.  C.  136),  in  which  case  the  prisoner  had  at  first  ob- 
tained lodgings  only  bj'  a  false  representation,  and  after  he  had  occu- 
pied the  lodgings  for  a  week  he  obtained  board  ;  and  it  was  held  that 
the  false  pretences  were  exhausted  b}'  the  contract  for  lodging,  the  ob- 
taining board  not  having  apparently-  been  in  contemplation  when  the 
false  pretence  was  made. 

For  the  prosecution  it  was  urged  that  the  false  pretence  was  a  con- 
tinuing one,  that  the  winning  of  the  cup  was  clearly  in  the  contempla- 
tion of  the  prisoner  when  he  entered  for  the  race,  and  that  the  judgment 
of  WiLLES,  J.,  in  Reg.  v.  Gardner,  citing  Reg.  v.  Abbott  and  Reg. 
r.  Burgess,  was  an  authorit}-  the  other  wa}-.  They  also  cited  Reg.  v, 
Martin  (L.  Rep.  1  Cr.  Cas.  Res.  56  ;   10  Cox  C.  C.'^SSS). 

Held,  by  the  Common  Serjeant,  after  conferring  with  Stephen,  J.}. 

\ 


in  the  Old  Court,  tliat  the  objection  must  prevail  as  the  false  pretences  ■ 


were  too  remote. 

The  prisoner  was  afterwards  tried  for  uttering  the  letter,  knowing  it 
to  be  forged,  and  convicted. 


\ 


SECT.  III.]  REGINA   V.   BUTTON.  791 


REGINA  V.   BUTTON. 
Court  for  Crown  Cases  Reserved.     1900. 

[Reported  1900,  2  Q.  B.  597.] 

Case  stated  by  the  recorder  of  Lincoln. 

The  prisoner  was  charged  with  attempting  to  obtain  goods  by  false 
pretences. 

On  August  26,  1899,  there  were  athletic  sports  at  Lincoln,  for  which 
prizes  were  given.  Among  the  contests  were  a  120  yards  race  and  a 
440  yards  race,  in  respect  of  each  of  which  a  prize  was  given  of  the 
value  of  ten  guineas. 

Among  the  names  sent  in  for  these  two  contests  was  the  name  of 
*'  Sims.  C,  Thames  Ironworks  A.  C,"  and  two  written  forms  of  entry 
were  sent  in  to  the  secretary  of  the  sports,  containing  (as  appeared  to 
be  usual)  a  statement  as  to  the  last  four  races  in  which  Sims  had  run. 
together  with  a  statement  that  he  had  never  won  a  race.  These  forms 
were  not  sent  bj-  Sims,  nor  were  they  in  his  handwriting,  and  he  knew 
nothing  of  them.  They  were  however  signed  in  his  proper  name,  and 
with  his  true  address,  and  contained  a  correct  account  of  his  last  four 
performances.  The  forms  were  proved  to  be  not  written  b}'  the 
prisoner. 

The  performances  of  Sims  were  very  moderate,  and,  as  a  fact,  he 
was  only  a  moderate  runner,  and  as  a  result  the  supposed  Sims  was 
given  b}'  the  handicapper  of  the  sports  a  start  of  11  yards  in  the  120 
yards  race  and  a  start  of  33  yards  in  the  440  ^ards  race. 

Sims  was  ill  at  Erith  when  the  races  were  run,  and  was  not  at  Lin- 
coln at  all,  and  he  was  jjersonated  by  the  prisoner,  who  was  a  fine 
performer  and  won  both  contests  ver}'  easil3^ 

The  suspicion  of  the  handicapper  being  aroused,  he  asked  the 
prisoner,  after  the  120  j'ards  race,  whether  he  was  really  Sims,  whether 
the  performance  given  in  the  entr}-  form  was  reall}-  his,  and  whether  he 
had  never  won  a  race.  To  these  questions  the  prisoner  answered  that 
he  was  Sims,  that  the  performances  were  his  own,  and  that  he  had 
never  won  a  race.  All  these  statements  were  untrue,  and  in  particular 
he  had  yiron  a  race  at  Erith  in  his  own  name.  The  handicapper  was 
called  as  a  witness,  and  swore  that  he  would  not  have  given  the  prisoner 
such  favorable  starts  if  he  had  known  his  true  name  and  performances. 

These  facts  were  all  admitted,  and  no  evidence  was  called  to  contra- 
dict them.  It  was,  however,  suggested  for  the  defence  that  the  prisoner 
might  have  done  it  for  "  a  lark,"  or  might  have  possibly  done  it  in 
order  to  keep  himself  in  good  training.  In  summing  up  the  case  to 
the  jury,  the  recorder  told  them  that  if  the  prisoner  did  it  for  "  a  lark," 
without  an}'  criminal  intent,  and  without  intending  to  get  the  prizes, 
the}-  ought  to  find  him  not  guiltN' ;  but  tliat  if  he  made  the  false  repre- 
sentations  wilfully,   intentionally,   and    fraudulently,    with   intent   to 


792  kegina  v.  button.  [chap.  x. 

obtain  the  prizes,  the\'  ought  to  find  him  guilty  of  attempting  to  obtain 
them  by  false  pretences. 

The  jury  found  a  verdict  of  guilt}'. 

It  was  contended  for  the  prisoner  that,  on  the  authority  of  Reg.  v. 
Larner,  14  Cox  C.  C.  497,  the  obtaining  the  prizes  was  too  remote  from 
the  false  representation  and  that  he  ought  to  be  acquitted.  The 
recorder  overruled  the  objection,  but  agreed  to  state  this  case.  A  case 
decided  bj-  Lord  Lindley  at  Nottingham  Assizes,  Reg.  v.  Dickenson, 
(1879)  Roscoe's  Criminal  Evidence,  432,  433,  12th  ed. ;  2  Russell  on 
Crimes,  Book  III.,  cap.  xxxii.,  s.  ii.,  p.  511,  6th  ed.  ;  Times  of  July 
26,  1879,  appeared  to  be  contrary  to  Reg.  v.  Larner,  supra. 

The  questions  of  law  for  the  opinion  of  the  Court  were :  — 

(1.)  Whether  the  recorder  had  summed  up  the  case  correctly  to  the 
jury. 

(2.)  Whether  the  attempt  to  obtain  the  prizes  was  too  remote  from 
the  pretence. 

J.  Percical  Ilur/hes,  for  the  defendant.  The  conviction  is  bad. 
There  was  no  completed  criminal  offence,  for,  assuming  that  the  de- 
fendant did  make  the  representations  alleged  for  the  purpose  of  obtain- 
ing a  longer  start  in  the  handicaps  than  he  would  have  got  if  he  had 
entered  in  his  own  name  and  disclosed  his  previous  performances 
truthfulh',  still  there  is  nothing  to  shew  that  he  may  not  have  done 
what  he  did  for  amusement,  or  to  keep  himself  in  training,  for  it  is  not 
shewn  that  he  ever  applied  for  the  prizes,  and  even  if  in  the  first 
instance  he  intended  to  get  the  prizes,  which  is  not  clearly  shewn,  still 
until  he  applied  for  them  there  was  a  locus  poenitentiae,  and  he  mi^ht 
never  have  taken  the  prizes  at  all. 

[Mathew,  J.  Those  are  questions  of  fact,  and  the  verdict  of  the 
jury  negatives  the  suggestions  on  behalf  of  the  defendant.] 

The  intention  to  obtain  the  prizes  is  too  remote  from  tlie  representa- 
tions. What  he  really  obtained  was  more  favourable  terms  in  handi- 
caps. He  came  in  first  owing  to  liis  good  running.  Reg.  v.  Larner, 
siqyra,  is  a  strong  authorit}'  against  the  conviction.  [He  also  referred 
to  Reg.  V.  Eagleton,  (1855)  6  Cox  C.  C.  559;  24  L.  J.  (M.C.)  158; 
Reg.  ('.  Gardner,  (1856)  7  Cox  C.  C.  136  ;  Dears.  &  B.  C.  C.  40.] 

Montague  Shearman  ( T.  Hollls  Walker  with  him),  for  the  prosecu- 
tion, was  not  called  on. 

Mathew,  J.  The  conviction  in  this  case  must  be  upheld.  The  case 
of  Reg.  V.  Larner,  supra,  is  relied  upon  as  an  authority  for  the  defend- 
ant. In  that  case  question  was  one  of  fact,  and  the  Common  Serjeant 
directed  the  jury  according  to  his  impression  of  the  view  of  the  law 
taken  by  Stephen  J. ,  whom  it  appears  from  the  report  he  had  consulted  ; 
but  that  case  is  contrary  to  the  ruling  of  Lord  Lindley  in  a  case  tried 
before  him  at  the  Nottingham  Assizes,  svpra,  and  I  am  clearly  of 
opinion  that  Lord  Lindley  was  right.  The  questions  to  be  decided  in 
the  present  case  were  pure  questions  of  fact,  namely,  whether  the 
intention  of  the  defendant,  when  he  entered  for  the  races,  was  to  obtain 


SECT.  III.]  KEGINA   V.    BUTTON.  793 

the  prizes,  and  whether  he  made  the  representations  with  that  intention. 
It  appears  from  the  case  that  he  pretended  to  be  a  man  who  had  never 
won  a  foot-race,  and  he  was  handicapped  on  the  faith  of  that  state- 
ment, as  is  shewn  by  the  evidence  given  by  the  handicapper;  but  it 
also  appears  from  the  case  that  his  statement  was  false,  for  he  had  won 
races.  Then  it  was  suggested  that  he  competed  in  the  name  of  Sims, 
as  it  is  put  in  the  case,  "  for  a  lark  "  ;  but  that  question  was  for  the 
jury,  and  they  have  negatived  the  suggestion.  It  was  also  contended 
that  his  coming  in  first  in  the  races  Jvas  owing  to  his  own  good  run- 
ning ;  but  it  was  also  owing,  in  part  at  least,  to  the  false  pretences,  for 
by  means  of  the  false  pretences  he  obtained  a  longer  start  than  he 
would  have  had  if  his  true  name  and  performances  had  been  known. 
It  is  also  said  that  some  other  act  had  to  be  done  in  order  to  make  the 
offence  complete,  and  that  he  could  not  rightly  be  convicted  because  it 
was  not  shewn  that  he  had  applied  for  the  prizes,  and  that  the  criminal 
intention  was  exhausted.  The  argument  is  exceedingly  subtle,  but 
unsound.  In  fact,  he  was  found  out  before  he  had  the  opportunity  of 
applying  for  the  prizes,  as  no  doubt  he  otherwise  would  have  done. 
The  pretences  which  the  prisoner  made  were  not  too  remote,  and  the 
conviction  was  good. 

Lawrance,  J.,  concurred. 

Wright,  J.  I  am  of  the  same  opinion.  If  nothing  more  had  been 
shewn  than  that  the  defendant  had  entered  for  the  races  in  a  false 
name,  the  case  would  have  been  different.  If  he  did  not  run  or  claim 
the  prize,  it  would  be  difficult  to  say  that  there  was  an  actual  attempt  to 
obtain  it.     But  here  in  effect  he  did  claim  the  prize. 

Kennedy  and  Darling,  JJ.,  concurred 

Conviction  affirmed. 

Note  on  Intent  to  Defraud.  —  As  to  the  requisite  intent  to  defraud  see  Rex  v. 
Wakeling,  Russ.  &  Ry.  504,  supra;  Rex  v.  Naylor,  L.  R.  1  C.  C  R.  4,  10  Cox  C.  C. 
149  ;  Com.  v.  Schwartz  (Ky.),  18  S.  W.  358.  8ee  also  Penny  v.  Hanson,  16  Cox  C.  C. 
173.  This  was  a  prosecution  under  5  Geo.  IV.  ch.  83,  s.  4,  for  "pretending  or  pro- 
fessing to  tell  fortunes  or  using  any  subtle  craft  to  deceive  and  impose  on  "  the  prose- 
cutor. The  defence  was  that  no  evidence  had  been  presented  of  an  intent  to  deceive. 
The  evidence  showed  that  defendant  offered  to  tell  the  prosecutor's  fortune  by  means 
of  astrologv.  Denman,  J.,  said  :  "  This  is  an  instance  to  which  the  doctrine  res  i/jsa 
loqudur  applies.  It  is  nonsense  to  suppose  that  in  these  days  of  advanced  knowledge 
the  appellant  really  did  believe  he  had  the  power  to  predict  a  man's  future  by  know- 
ing at  what  hour  he  was  born,  and  the  position  of  the  stars  at  the  particular  moment 
of  his  birth.  No  person  wlio  was  not  a  lunatic  could  believe  he  possessed  such  power. 
There  was  tlierefore  no  need  on  the  part  of  the  prosecution  to  negative  his  belief  in 
such  power  or  capacity.  The  magistrate  rightly  drew  an  inference  that  the  appellant 
had  an  intent  to  deceive  and  impose  on  the  prosecutor."  —  Ed. 


794  EEGINA   V.   WADE.  [CHAP.  XI. 


CHAPTER   XI. 
RECEIVING   STOLEN   PROPERTY. 


SECTION   I. 

The  Receiving. 

REX   V.    RICHARDSON. 
Old  Bailey.     1834. 

[Reported  6  Carrington  Sf  Pai/ne,  335.] 

Four  of  the  prisoners  were  indicted  for  sacrilegiously  breaking  and 
entering  a  chapel,  called  St.  Philip's  Chapel,  in  the  parish  of  Clerken- 
well,  and  stealing  therein  certain  things.  The  other  prisoner  was 
charged  as  receiver.^ 

Taunton,  J.  (in  summing  up  with  respect  to  the  receiver),  said: 
Whether  he  made  any  bargain  or  not  is  a  matter  of  no  consequence. 
If  he  received  the  property  for  the  mere  purpose  of  concealment  with- 
out deriving  any  profit  at  all  he  is  just  as  much  a  receiver  as  if  he  had 
purchased  it.  It  is  a  receiving  within  the  meaning  of  the  statute. 
Verdict  J  three  of  the  prisoners  guilty  and  two  of  them  not  guilty.^ 


REGINA  V.   WADE. 
Liverpool  Assizes.     1844. 

[Reported  1  Carrington  &  Kirwan,  739.] 

The  prisoners  Wade  and  Kenyon  were  indicted  for  having  broken 
and  entered  the  house  of  Thomas  Worsley  at  Warrington,  and  having 
stolen  therefrom  one  watch,  two  handkerchiefs,  and  other  articles  his 
property,  the  prisoner  Leigh  being  indicted  for  receiving  the  watch  and 
the  handkerchiefs,  knowing  them  to  have  been  stolen. 

The  prisoners  Wade  and  Kenyon  pleaded  guilty.  The  prisoner  Leigh 
pleaded  not  guilty  and  was  tried. 

1  Part  of  the  case  not  involving  any  question  of  receiving  is  omitted. 

2  Ace.  Com.  V.  Bean,  117  Mass.  141.  —  Ed. 


SECT.  I,]  REGINA   V.    MILLER.  795 

It  was  proved  by  the  servant  of  a  pawnbroker  that  the  wife  of  the 
prisoner  Leigh  had  pledged  the  stolen  watch  on  a  day  subsequent  to 
the  robbery,  and  Jarnes  Jones,  a  constable  of  Warrington,  also  proved 
that  he  had  seen  all  the  three  prisoners  together,  they  being  in  custody 
together  at  Manchester,  when  Leigh  said  that  he  had  left  Kenyon's  house 
with  Kenyon  before  the  robbery,  that  he  had  afterwards  gone  to  Dun- 
ham (about  eiglit  miles  from  Manchester)  and  returned.  Leigh  was 
then  discharged.  Rut  the  witness  subsequently  went  to  Manchestei 
again,  and  caused  him  to  be  again  apprehended  ;  and  Leigh's  wife  then, 
in  the  presence  of  Leigh,  told  this  witness  that  she  had  taken  the  watch 
and  pawned  it  for  10s.  She  added  that  Leigh  had  also  told  her  to  take 
two  handkerchiefs,  and  that,  as  she  was  about  to  go  with  them,  a  police-, 
man  came,  and  she  left  them  in  a  cellar  next  door  to  her  husband's 
house.  Upon  that  information,  the  witness  went  to  the  cellar  and 
found  the  handkerchiefs.  Afterwards,  when  Leigh  was  in  custody  in 
the  lockups  with  Wade,  Leigh  told  the  same  witness  that  while  he 
(Leigh)  was  before  with  Wade  in  the  same  place.  Wade  had  told  him 
(Leigh)  that  he  had  "  planted"  the  watch  and  handkerchiefs  under  a 
flag  in  the  soot-cellar  in  his  (Leigh's)  house  ;  and  that  when  he  (Leigh) 
was  discharged,  as  before  mentioned,  he  had  gone  and  taken  the  things, 
and  had  desired  his  wife  to  pledge  the  watch  for  as  much  as  she  could 
get  upon  it. 

The  watch  and  handkerchiefs  were  identified  as  the  property  of  the 
prosecutor. 

Pollock,  C.  B.  I  doubt  whether,  when  the  possession  has  been 
transferred  by  an  act  of  larceny,  the  possession  can  be  considered  to 
remain  in  the  owner.  Were  it  so,  then  every  receiver  of  stolen  goods, 
knowing  them  to  be  stolen,  would  be  a  thief ;  and  so  on,  in  series  from 
one  to  another,  all  would  be  thieves.  If  tliis  was  an  act  done  by  the 
prisoner  (Leigh)  in  opposition  to  Wade,  or  against  his  will,  then  it 
might  be  a  question  whether  it  were  a  receiving.  But  if  Leigh  took  the 
articles  in  consequence  of  information  given  by  Wade,  Wade  telling 
Leigh  in  order  that  the  latter  might  use  the  information  by  taking  the 
goods,  then  it  is  a  receiving.  Verdict,  guilty. 


REGINA   V.    MILLER. 

Crown  Case  Reserved,  Ireland.     1854. 

[Reported  6  Cox  C.  C.  353.] 

Lefroy,  C.  J.,^  now  delivered  the  judgment  of  the  court.  In  this 
case  two  questions  have  been  reserved  for  our  consideration.  First, 
whether  there  was  sufficient  evidence  that  Mary  Miller  had  received 

^  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


/ 


796  RF.GINA    V.    SMITH.  [CHAP.   XT. 

the  stolen  jDroperty ;  and,  secondly,  whether  certain  evidence  regard- 
ing the  former  dealings  between  the  two  prisoners,  to  the  admissi- 
bility of  which  no  objection  had  been  originally'  offered,  had  been 
left  to  the  jury  with  the  proper  view.  The  evidence  in  support  of 
the  charge  of  receiving  was  this  :  the  servant-maid  of  Mary  Miller 
was  produced  as  a  witness,  and  stated  that  her  mistress  kept  a  public- 
house  in  the  town  of  Fermoy.  Tliat  Ellen  Connors,  the  other  prisoner, 
entered  the  shop,  and  went  behind  the  counter  wliere  she  was  ;  that 
her  mistress  called  her  into  the  sliop  ;  that  Connors  had  then  the  pieces 
of  cotton  in  her  hand,  which  Miller  desired  witness  to  take  to  the 
pawn  office  and  pawn,  and  that  she  did  so  accordingly ;  that  she 
brought  back  the  money  which  she  then  received,  and  gave  it,  in  the 
presence  of  her  mistress,  to  Connors,  who  was  then  in  the  shop,  but 
that  her  mistress  had  never,  with  her  own  hand,  received  any  part  of 
the  money  from  her.  The  question  was,  whether  this  was  a  receiving 
of  stolen  goods  by  the  mistress  ?  It  appears  to  us  that  it  was  virtually 
a  receiving  by  Mary  Miller,  inasmuch  as  her  servant,  by  her  order  and 
direction,  received  the  goods  from  the  thief,  took  them  to  the  pawn 
office,  and  brought  back  the  money  to  the  thief.  This,  in  our  opinion, 
was  virtually  as  much  a  receiving  of  stolen  goods  as  if  her  own  hand, 
and  not  that  of  her  servant,  had  received  them.  No  question  can  be 
raised  in  this  case  involving  the  necessity  of  those  subtle  distinctions- 
taken  on  former  occasions,  with  respect  to  the  continuance  of  the 
possession  of  the  goods  in  the  thief,  for  the  goods  here  were  clearly 
transferred  to  hands  which  were  virtually  those  of  INIary  Miller  her- 
self. No  question  has  been  reserved  relative  to  the  sufficiency  of  the 
evidence  of  guilty  knowledge.  We  are  of  opinion  that  the  evidence 
was  left  to  the  jury  by  the  assistant  barrister  in  the  way  in  v/hicli  it 
ought  to  have  been,  and  therefore  that  his  decision  on  both  points 
ought  to  be  affirmed.'^ 


REGINA   y.    SMITH. 
Crown  Case  Reserved.     1855. 

[Reported  Dear  sly  C.  C  494.  J 

The  following  case  was  reserved  for  the  opinion  of  the  Court  of 
Criminal  Appeal  by  Mr.  Edwin  James,  Q.  C,  Recorder  of  Brighton. 

At  the  Quarter  Sessions  of  the  Peace  for  the  borough  of  Brighton, 
holden  at  the  Town  Hall  in  the  said  borough,  before  the  Recorder  of 
the  borough,  on  the  8th  day  of  May,  1855,  the  prisoner,  Thomas 
Smith,  was  indicted  for  feloniously  receiving  a  stolen  watch,  the  prop- 
erty of  John  Nelson,  knowing  the  same  to  have  been  stolen.     It  was 

2  Ace.  Reg.  V.  Rogers,  37  L.  J.  M.  C.  83.—  Ed. 


SECT,  l]  REGINA    V.   SMITH.  797 

proved  that  John  Nelson,  the  prosecutor,  between  eleven  and  twelve 
o'clock  on  the  night  of  the  12th  of  April  in  this  year,  was  in  a  public- 
house  called  the  "  Globe  "  in  Edward  Street  in  the  said  borough  ;  he  was 
in  company  with  a  prostitute  named  Charlotte  Duncan,  who  lodged  in 
a  room  of  a  house  No.  17  Thomas  Street,  Brighton,  which  belonged 
to  the  prisoner,  of  whom  she  rented  the  room. 

The  prisoner  and  five  or  six  other  persons  were  present  in  the  apart- 
ment in  the  Globe  Inn  when  the  prosecutor  and  Charlotte  Duncan 
entered  ;  while  the  prosecutor  was  drinking  in  the  "  Globe,"  his  watch, 
being  the  watch  named  in  the  indictment,  was  taken  from  his  person 
by  some  one  who  forced  open  the  ring  which  secured  the  watch  to  a 
guard.  I'he  prosecutor  heard  the  click  of  the  ring  and  immediately 
missed  his  watch,  and  taxed  the  prisoner  as  the  thief.  A  policeman 
was  sent  for  and  a  partial  search  made,  but  the  watch  was  not  found. 
The  prisoner  was  present  all  that  time,  aud  also  a  man  named  Hollands 
was  present  all  the  time.  Soon  after  the  loss  of  the  watch  the  prose- 
cutor and  the  girl  Charlotte  Duncan  went  together  to  Charlotte  Dun- 
can's room  in  Thomas  Street.  After  they  had  been  there  together  little 
more  than  an  hour  the  prisoner  came  into  the  room  where  they  were, 
and  said  to  tlie  prosecutor,  "•  Was  not  you  in  the  '  Globe,'  and  did  not 
you  lose  your  watch?"  The  prosecutor  said,  "Yes."  The  prisoner 
then  said,  "What  would  you  give  to  have  3^our  watch  back  again  ?  " 
Prosecutor  said,  "  I'd  give  a  sovereign."  Prisoner  then  said,  "  Well, 
then,  let  the  young  woman  come  along  with  me,  and  I  will  get  you 
the  watch  back  again."  Charlotte  Duncan  and  the  prisoner  then  went 
together  to  a  house  close  by,  in  which  the  prisoner  himself  lived. 
They  went  together  into  a  room  in  which  Hollands  was.  This  was 
nearly  one  o'clock.  There  was  a  table  in  the  room  ;  on  first  going  in 
Charlotte  Duncan  saw  there  was  no  watch  on  the  table,  but  a  few 
minutes  afterwards  she  saw  the  watch  there.  The  prisoner  was  close 
to  tlie  table.  She  did  not  see  it  placed  there,  but  she  stated  it  must 
have  been  placed  there  by  Hollands,  as,  if  the  prisoner  to  whom  she 
was  talking  had  placed  it  there,  she  must  have  observed  it.  The 
prisoner  told  Charlotte  Duncan  to  take  the  watch  and  go  and  get  the 
sovereign.  She  took  it  to  the  room  in  17  Thomas  Street,  to  the  prose- 
cutor, and  in  a  few  minutes  the  prisoner  and  Hollands  came  to  that 
room.  Hollands  asked  for  the  reward.  The  prosecutor  gave  Hollands 
half-a-crown,  and  said  he  believed  the  watch  was  stolen,  and  told  him 
to  be  off.  Hollands  and  the  prisoner  then  left.  The  prisoner  did  not 
then  sa}'  anj^thing,  nor  did  the  witnesses  see  him  receive  any  money. 
Hollands  absconded  before  the  trial.  The  recorder  told  the  jury  that, 
if  they  believed  that  when  the  prisoner  went  into  the  room  17  Thomas 
Street  and  spoke  to  the  prosecutor  about  the  return  of  the  watch,  and 
took  the  girl  Duncan  with  him  to  the  house  where  the  watch  was  given 
up,  the  prisoner  knew  that  the  watch  was  stolen  ;  and  if  the  jury 
believed  that  the  watch  was  then  in  the  custody  of  a  person  with  the 
cognizance  of  the  prisoner,  that  person  being  one  over  whom  the  pris' 


798  REGINA.    V.    SMITH.  [CHAP.   XI. 

oner  had  absolute  control,  so  that  the  watch  would  be  forthcoming  if 
the  prisoner  ordered  it,  there  was  ample  evidence  to  justify  them  in 
convicting  the  prisoner  for  feloniously  receiving  the  watch.  The  jury- 
found  the  prisoner  guilty,  and,  in  answer  to  a  question  from'the" 
recorder,  stated  that  they  believed  that,  though  the  watch  was  in 
Hollands'  hands  or  pocket,  it  was  in  the  prisoner's  absolute  control. 

Sentence  was  passed  on  the  prisoner,  but  was  respited  until  the 
opinion  of  the  court  could  be  taken. 

The  question  for  the  opinion  of  the  court  is,  if  the  conviction  of  the 
prisoner  is  proper. 

This  case  was  argued  on  the  2d  day  of  June,  1855,  before  Lord 
Campbell,  C.  J.,  Alder.son,  B.,  Erie,  J.,  Piatt,  B.,  and  Crowder,  J, 

No  counsel  appeared  for  the  Crown. 

Creasy^  for  the  prisoner.^ 

Lord  Campbell,  C.  J.  I  think  that  the  conviction  was  right.  In 
the  first  place  the  direction  of  the  learned  recorder  was  unexception- 
able. According  to  the  decided  cases  as  well  as  to  the  dicta  of  learned 
judges,  manual  possession  is  unnecessary.  If  we  were  to  hold  a  con- 
trary doctrine,  many  receivers  must  escape  with  impunity.  Then  it 
has  been  held  in  decided  cases,  including  Regina  v.  Wiley,  4  Cox  C.  C. 
412,  that  there  may  be  a  joint  possession  in  the  receiver  and  the  thief ; 
that  is  the  ratio  decidendi  on  which  the  judgment  in  that  case  pro- 
ceeds. Then,  was  not  there  ample  evidence  to  justify  the  jury  in 
coming  to  the  conclusion  at  which  they  arrived?  I  think  there  was. 
They  might,  it  is  true,  have  drawn  a  different  conclusion,  and  have 
found  that  Smith  was  the  thief ;  and  if  they  had  drawn  that  conclu- 
sion, he  would  have  been  entitled  to  an  acquittal.  Another  inference 
which  they  might  have  drawn,  and  which  would  also  have  resulted  in 
a  verdict  of  not  guilty,  was,  that  Hollands  being  the  thief,  the  watch 
remained  in  his  exclusive  possession,  and  that  the  prisoner  acted  as 
his  agent  in  restoring  the  watch  to  the  prosecutor ;  but  the  jury  have 
come  to  a  different  conclusion,  and  I  think  they  were  justified  in  so 
doing.  We  have  instances  in  real  life,  and  we  find  it  represented  in 
novels  and  dramas  drawn  from  real  life,  that  persons  are  employed  to 
commit  larcenies  and  so  deal  with  the  stolen  goods  that  they  may  be 
under  the  control  of  the  employer.  In  this  case  Hollands  may  have 
been  so  employed  by  the  prisoner,  and  the  watch  may  have  been  under 
the  prisoner's  control,  and  if  so,  there  was  evidence  of  a  possession 
both  by  Hollands  and  the  prisoner. 

Alderson,  B.  There  was  abundant  evidence  from  which  the  jury 
might  come  to  the  conclusion  at  which  they  arrived,  although  there  was 
evidence  the  other  way. 

Erle,  J.  The  doubt  in  these  cases  has  arisen  as  to  the  meaning  of 
the  word  "  receive,"  which  has  been  supposed  to  mean  manual  posses- 
sion by  the  receiver.     In  Regina  v.  Wiley,  Patteson,  J.,  says,  that  a 

1  The  argument  is  omitted. 


SECT,  I.]  REGINA    V.    WOODWARD.  799 

manual  possession,  or  even  a  touch,  is  not  essential  to  a  receiving, 
but  that  there  must  be  a  control  over  the  goods  by  the  receiver.  Here 
tlie  question  of  control  was  left  to  the  jury,  and  they  expressly  found 
tliat  though  the  Avatch  was  in  Hollands'  hand  or  pocket,  it  was  in  the 
]>risoner's  absolute  control. 

Platt,  B.  There  was  some  evidence  that  the  prisoner  might  have 
been  tlie  thief,  and  the  prosecutor  charged  him  with  being  the  tliief  ; 
but  a  search  was  made  and  the  watch  was  not  found,  and  it  was  proved 
that  Hollands  absconded  before  the  trial ;  from  that  and  tlie  other  facts 
of  the  case,  the  jury  might  well  find  that  Hollands  was  the  thief  and 
the  prisoner  the  receiver. 

Ckowdek,  J.  I  also  think  that  both  the  direction  and  the  convic- 
tion were  right.  There  was  sufficient  evidence  that  Hollands  was  the 
thief.  The  question  is  then  put  to  the  jury.  Was  the  watch  under  the 
control  of  the  prisoner?  And  they  say  it  was.  That  finding  is  suffi- 
cient to  support  their  verdict,  and  the  conviction  was  right. 

Conviction  affirmed. 


REGINA   V.   WOODWARD. 
Crown  Case  Reserved.     1862. 

[Reported  9  Cox  C.  C.  95.] 

Case  reserved  for  the  opinion  of  the  Court  of  Criminal  Appeal.  At 
the  Quarter  Sessions  of  the  peace  for  the  county  of  Wilts,  held  at  Marl- 
borough, on  the  16th  da}-  of  October,  1861,  before  me,  Sir  John  Wither 
Awdry,  Bart,  and  others  my  fellows,  Benjamin  Woodward,  of  Trow- 
bridge, in  the  county  of  Wilts,  dealer,  was  found  guilt}-  of  receiving 
stolen  goods,  knowing  them  to  have  been  stolen,  and  was  thereupon 
sentenced  to  nine  calendar  months'  imprisonment  with  hard  labor,  and 
the  prisoner  now  is  undergoing  his  sentence. 

The  actual  delivery  of  the  stolen  property  was  made  bj-  the  principal 
felon  to  tiie  prisoner's  wife,  in  the  absence  of  the  prisoner,  and  she 
then  paid  6(1.  on  account,  but  the  amount  to  be  paid  was  not  then  fixed. 
Afterwards  the  prisoner  and  the  principal  met  and  agreed  on  the  price, 
and  the  prisoner  paid  the  balance. 

Guilty  knowledge  was  inferred  from  the  general  circumstances  of  the 
case. 

It  was  objected  that  the  guilty  knowledge  must  exist  at  the  time  of 
receiving,  and  that  when  the  wife  received  the  goods  the  guilty  knowl- 
edge could  not  have  come  to  the  prisoner. 

The  court  overruled  this  objection,  and  directed  the  jur}-  that  until 
the  subsequent  meeting,  when  the  act  of  the  wife  was  adopted  by  the 
prisoner  and  the  price  agreed  upon,  the  receipt  was  not  so  complete  as 
to  exclude  the  effect  of  the  guilty  knowledge. 


800  EEGINA.   V.   WOOinVARD.  [CHAP.  XI. 

If  the  court  shall  be  of  opinion  that  the  circumstances  before  set  forth 
are  sufficient  to  support  a  conviction  against  the  prisoner  for  the  felo- 
nious receipt,  the  conviction  is  to  stand  confirmed ;  but  if  the  court 
shall  be  of  a  contrary  opinion,  then  the  conviction  is  to  be  quashed. 

J.  W.  AWDRY. 

G.  ]3i'oderlck^  for  the  prisoner.  This  conviction,  it  is  contended, 
cannot  be  sustained.  At  the  trial  it  was  not  said  on  the  part  of  the 
prosecution  that  the  wife  of  the  prisoner  was  her  husband's  agent  in 
receiving  the  property',  but  that  he  subsequently  adopted  her  act  of  re- 
ceiving by  paying  the  balance  of  the  price  agreed  upon.  But  there  was 
no  evidence  of  an}'  guilty  receipt  b}-  the  wife,  or  of  an}'  subsequent  act 
of  receiving  by  the  prisoner.  The  guiltj'  knowledge  and  act  of  receiv- 
ing must  be  sinuiltaneous.  In  Reg.  v.  Dring  and  Wife,  1  Dears.  & 
Bell,  329  ;  7  Cox  Crim.  Cas.  382,  where  a  husband  and  wife  were  jointly 
indicted  for  receiving  stolen  goods,  and  the  jurj'  found  both  guilty,  stat- 
ing that  the  wife  received  them  without  the  control  or  knowledge  of  and 
apart  from  her  husband,  and  that  he  afterwards  adopted  her  receipt,  it 
was  held  that  the  conviction  could  not  be  sustained  as  against  the  hus- 
band ;  and  in  liis  judgment,  Cockburn,  C.  J.,  observed  that,  "  If  we 
are  to  take  it  that  the  jur}-  meant  to  say,  '  We  find  the  prisoner  guilt}' 
if  tlie  court  should  be  of  opinion  that  upon  the  facts  we  are  right,'  then 
we  ought  to  be  able  to  see  that  the  prisoner  took  some  active  part  in  the 
matter,  that  the  wife  first  received  the  goods  and  then  the  husband  from 
her,  both  with  a  guilty  knowledge."  [Blackburn,  J.  Tlie  verdict  in 
this  case  is,  that  he  did  receive  them  :  there  is  no  question  raised  as  to 
whether  the  verdict  was  justified.  Erle,  C.  J.  Receiving  is  a  very 
complex  term.  There  is  the  case  where  two  persons  stole  fowls,  and 
took  them  for  sale  in  a  sack  to  another  person,  who  knew  them  to  have 
been  stolen.  The  sack  was  put  in  a  stable  and  the  door  shut,  while  the 
three  stood  aside  haggling  about  what  was  to  be  paid  for  tliem.  There 
the  judges  differed  as  to  whether  there  was  a  receiving  by  the  third  per- 
son in  whose  stable  the  sack  was  put.]  That  was  the  case  of  Reg.  v. 
Wiley,  4  Cox  Crim.  Cas.  412.  The  actual  receipt  of  the  goods  was  by 
the  wife,  and  it  is  consistent  with  the  evidence  that  the  goods  may 
never  have  come  into  the  prisoner's  possession  at  all.  (The  case  of 
Reg.  V.  Button,  11  Q.  B.,  3  Cox  Crim.  Cas.  229,  were  also  cited.) 

Erle,  C.  J.  The  argument  of  the  learned  counsel  for  the  prisoner 
has  failed  to  convince  me  that  the  conviction  was  wrong.  It  appears 
that  the  thief  brought  to  the  premises  of  the  prisoner  tlie  stolen  goods 
and  left  them,  and  that  sixpence  was  paid  on  account  of  them  by 
the  prisoner's  wife,  but  there  was  nothing  in  the  nature  of  a  com- 
plete receipt  of  the  goods  until  the  thief  found  the  husband  and  agreed 
with  him  as  to  the  amount,  and  was  paid  the  balance.  The  receipt  was 
complete  from  the  time  when  the  thief  and  the  husband  agreed  ;  till 
then  the  thief  could  have  got  the  goods  back  again  on  payment  of 
the  sixpence.  I  am  of  opinion,  therefore,  that  the  conviction  should 
be  aflfirmed. 


SECT.  II.j  REGINA    V.    DOLAN.  SOI 

Blackburn,  J.  The  principal  felon  left  the  stolen  property  with  the 
wife  as  the  husband's  servant,  but  the  court  below,  as  1  understand  tlie 
case,  doubted  whether  the  husband  could  be  foimd  guilty  of  feloniously 
receiving,  as  he  was  absent  at  the  time  when  the  goods  were  delivered 
to  the  wife,  and  could  not  then  know  that  they  were  stolen.  It  is  found 
that,  as  soon  as  the  husband  heard  of  it,  he  adopted  and  ratified  what 
had  been  done,  and  that  as  soon  as  he  adopted  it  he  had  a  guilty 
knowledge  ;  he  therefore  at  that  time  received  the  goods  knowing  them 
to  have  been  stolen. 

Keating,  J.  I  am  of  the  same  opinion.  The  case  finds  that  the 
agreement  as  to  the  price  was  not  complete  till  the  thief  and  the  hus- 
band agreed.  I  think  therefore  that  the  receipt  was  not  complete  till 
then,  and  that  the  conviction  was  right.  If  we  were  to  hold  that  the 
conviction  was  not  right,  the  consequences  would  be  ver}-  serious. 

Wilde,  B.  I  read  the  case  as  showing  that  the  wife  received  the 
goods  on  the  part  of  the  prisoner  her  husband,  and  that  act  of  her  was 
capable  of  being  ratified  on  the  part  of  the  prisoner.  If  so,  that  makes 
tlie  first  act  of  receiving  by  the  wife  his  act.  In  the  case  of  Reg.  u. 
Dring  and  Wife,  the  only  statement  was  "  that  the  husband  adopted 
his  wife's  receipt,"  and  the  court  thought  the  word  "  adopted  "  capable 
of  meaning  that  the  husband  passively  consented  to  what  his  wife  had 
done,  and  on  that  ground  quashed  the  conviction.  But  here  the  prisoner 
adopted  his  wife's  receipt  b}^  settling  and  paying  the  amount  agreed  on 
for  the  stolen  goods, 

Mellor,  J.,  concurred.  Conviction  affirmed. 


SECTION   II. 

Stolen  Property. 

REGINA  V.   DOLAN. 

Crown  Case  Reserved.     1855. 

[Reported  6  Cox  C.  C.  449  ;  Dearsli/  C.  C.  436.] 

The  following  case  was  stated  by  M.  D.  Hill,  Esq.,  Q.  C,  Recorder 
of  Birmingham :  — 

At  the  Sessions  held  in  Birmingham,  on  the  5th  day  of  January, 
1855,  William  Rogers  was  indicted  for  stealing,  and  Thomas  Dolan 
for  receiving,  certain  brass  castings,  the  goods  of  John  Turner. 
Rogers  pleaded  guilty,  and  Dolan  was  found  guilty. 

It  was  proved  that  the  goods  were  found  in  the  pockets  of  the  pris- 
oner Rogers  by  Turner,  who  then  sent  for  a  policeman,  who  took  the 
goods   and  wrapped  them  in  a  handkerchief,   Turner,    the   prisoner 


r 


802  EEoiNA  V.  Dor.AN.  [chap.  XI. 

Rogers,  and  the  policeman  going  towards  Dolan's  sliop.  When  they 
came  near  it  the  policeman  gave  the  prisoner  Rogers  the  goods,  and 
the  latter  was  then  sent  by  Turner  to  sell  them  where  he  had  sold 
others  ;  and  Rogers  then  went  into  Dolan's  shop  and  sold  them  and 
gave  the  money  to  John  Turner  as  the  proceeds  of  the  sale.  Upon 
these  facts  it  was  contended  oh  the  part  of  Dolan  that  Turner  had 
resumed  the  possession  of  the  goods,  and  that  Rogers  sold  them  to 
Dolan  as  the  agent  of  Turner,  and  that  consequently  at  the  time  they 
were  received  by  Dolan,  they  were  not  stolen  goods  within  the  mean- 
ing of  the  statute. 

1  told  the  jury,  upon  the  authority  of  the  case  of  Regina  v.  Lyons 
and  another,  C.  &  M.  217,  cited  by  the  counsel  for  the  prosecution, 
that  the  prisoner  was  liable  to  be  convicted  of  receiving,  and  the  jury 
found  him  guilty. 

Upon  this  finding  I  request  the  opinion  of  the  Court  of  Appeal  in 
Criminal  Cases  on  the  validity  of  Dolan's  conviction. 

Dolan  has  been  sent  back  to  prison,  and  I  respited  judgment  on  the 
conviction  against  him  until  the  judgment  of  the  court  above  shall  have 
been  given. 

O'Brien,  for  the  prisoner.  This  conviction  cannot  be  sustained. 
The  objection  is,  that  when  the  goods  reached  the  hands  of  Dolan 
they  were  not  stolen  goods.  They  had  been  restored  to  the  posses- 
sion of  the  owner,  and  the  sale  to  the  prisoner  was  with  the  owner's 
authority. 

Lord  Campbell,  C.  J.  There  seems  to  be  great  weight  in  that 
objection  but  for  the  authority  of  the  case  cited.  It  can  hardly  be 
supposed  that  if  goods  were  stolen  seven  years  ago,  and  had  been  in 
the  possession  of  the  owner  again  for  a  considerable  period,  there  could 
be  a  felonious  receipt  of  them  without  a  fresh  stealing. 

O^Brien.  That  was  the  view  taken  by  the  learned  recorder ;  and 
R.  V.  Lyons,  C.  &  M.  217,  which  was  cited  for  the  prosecution,  does 
not  appear  to  have  been  a  case  much  considered.  Coleridge,  J.,  in 
that  case,  said,  that  for  the  purposes  of  the  day,  he  should  consider 
the  evidence  as  sufficient  in  point  of  law  to  sustain  the  indictment,  but 
would  take  a  note  of  the  objection. 

Coleridge,  J.     I  certainly  do  not  think  so  to-day. 

O^Brien.  There  is  also  a  slight  circumstance  of  distinction  between 
that  case  and  the  present.  It  does  not  appear  in  that  case  that  the 
stolen  property  was  ever  actually  restored  to  the  handvS  of  the  owner, 
nor  that  he  expressly  directed  the  thief  to  take  it  to  the  prisoner. 
(He  was  stopped.) 

Beasley,  for  the  prosecution.  R.  v.  Lyons  is  expressly  in  point,  and 
the  learned  judge  who  decided  it  does  appear  to  have  had  his  attention 
recalled  to  the  point  after  the  conviction,  and  still,  upon  deliberation, 
to  have  thought  there  was  nothing  in  the  objection.  The  facts  are  thus 
stated  in  the  marginal  note:  "  A  lad  stole  a  brass  weight  from  his 
master,  and  after  it  had  been  taken  from  him  in  his  master's  presence 


SECT.  II.]  REGINA    V.    DOLAN.  803 

it  was  restored  to  him  again  with  his  master's  consent  in  order  tliat  he 
might  sell  it  to  a  man  to  whom  he  had  been  in  the  habit  of  selling  sim- 
ilar articles  which  he  had  stolen  before.  The  lad  did  sell  it  to  the 
man  ;  and  the  man  being  indicted  for  receiving  it  of  an  evil-disposed 
person,  well  knowing  it  to  have  been  stolen,  was  convicted  and  sen- 
tenced to  be  transported  seven  years."  The  report  adds  that  after 
the  sentence,  "  the  matter  was  subsequently  called  to  his  Lordship's 
attention  by  the  prisoner's  counsel,  yet  no  alteration  was  made  in  the 
judgment  of  the  court ;  from  which  it  is  to  be  inferred  that,  upon  con- 
sideration, his  Lordship  did  not  think  that  in  point  of  law  the  objection 
ought  to  prevail.''  The  present  is,  however,  a  stronger  case  than 
that ;  because  here  in  truth  the  master  did  not  recover  possession  of 
the  stolen  goods.  They  were  in  the  hands  of  the  police ;  and  what 
the  master  did  must  be  considered  as  done  under  the  authority  of  the 
police. 

Lord  Campbell,  C.  J.     No  ;  the  policeman  was  the  master's  agent. 

Platt,  B.     And  the  sale  was  by  direction  of  the  master. 

Beasley.  The  statute  does  not  require  that  the  receipt  should  be 
directly  from  the  thief.  It  only  requires  that  the  prisoner  should 
receive  stolen  goods,  knowing  them  to  have  been  stolen  ;  and  that  is 
proved  in  this  case.  In  many  cases  it  has  been  held  that  where  the 
owner  of  property  has  become  acquainted  with  a  plan  for  robbing  him, 
his  consent  to  the  plan  being  carried  out  does  not  furnish  a  defence  to 
the  robbers.     R.  o.  E^ggiugton,  2  B.  &  P.  508. 

Loud  Campbell,  C.  J.  But  to  constitute  a  felonious  receiving,  the 
receiver  must  know  that  at  that  time  the  property  bore  the  character 
of  stolen  property.  Can  it  be  said  that,  at  any  distance  of  time,  goods 
which  had  once  been  stolen  would  continue  to  be  stolen  goods  for  the 
purpose  of  an  indictment  for  receiving,  although  in  the  mean  time 
they  may  have  been  in  the  owner's  possession  for  years? 

Cress  WELL,  J.  The  answer  to  that  in  this  case  seems  to  be  that 
the  policeman  neither  restored  the  property  nor  the  possession  to  the 
master;  that  the  goods  were  in  the  custody  of  the  law ;  and  that  the 
master's  presence  made  no  difference  in  that  respect. 

Beasley.  That  is  the  argument  for  the  prosecution  ;  and  it  is  man- 
ifest that  if  the  policeman  had  dissented  from  the  plan  of  sending 
Rogers  to  Dolan's  shop,  the  master  could  not  have  insisted  upon  the 
policeman  giving  up  the  property  to  him. 

Lord  Campbell,  C.  J.  I  feel  strongly  that  this  conviction  is  wrong. 
I  do  not  see  how  it  can  be  supported,  unless  it  could  be  laid  down 
that,  if  at  any  period  in  the  history  of  a  chattel  once  stolen,  though 
afterwards  restored  to  the  possession  of  the  owner,  it  should  be  re- 
ceived by  any  one  with  a  knowledge  that  it  had  been  stolen,  an  offence 
would  be  committed  within  the  statute.  I  think  that  that  would  not 
be  an  offence  within  the  statute  any  more  than  it  would  make  the 
receiver  an  accessory  to  the  felony  at  common  law.  If  the  article  is 
restored  to  the  owner  of  it,  and  he,  having  it  in  his  possession,  after- 


804  REGINA   V.   DOLAN.  [CIIAP.  XI. 

wards  bails  it  to  another  for  a  particular  purpose  of  delivering  it  to  a 
third  person,  and  that  third  person  receives  it  from  that  bailee,  I  do 
not  see  how  it  can,  under  tliese  circumstances,  be  feloniously  received 
from  that  bailee.  Then  what  are  the  facts  here?  [His  Lordship 
stated  the  facts  as  above.]  Turner,  the  owner,  therefore  had,  I  think, 
as  much  possession  of  the  goods  as  if  he  had  taken  them  into  his  own 
hands,  and  with  his  own  hands  delivered  them  to  another  person  for 
a  particular  purpose,  which  was  performed.  He  was,  subsequent  to 
the  theft,  the  bailor  and  the  other  person  was  the  bailee  of  the  goods. 
Then  they  were  carried  to  the  prisoner  by  the  authority  of  the  owner ; 
and  I  cannot  think  that  under  those  circumstances  there  was  a  receiv- 
ing within  the  statute.  As  to  the  case  cited,  I  cannot  help  thinking 
that  the  facts  cannot  be  quite  accurately  stated,  and  that  there  was 
something  more  in  that  case  than  appears  in  the  report ;  but  if  not,  I 
am  bound  to  say  that  I  do  not  agree  in  that  decision. 

Coleridge,  J.  I  have  no  recollection  of  the  case  cited,  and  I  have 
no  right,  therefore,  to  say  that  it  is  not  accurately  reported  ;  but, 
assuming  it  to  be  so,  I  am  bound  to  say  that  I  think  I  made  a  great 
mistake  there.  What  is  the  case?  If  for  a  moment  the  interference 
of  the  policeman  is  put  out  of  the  question,  the  facts  are,  that  the 
goods  which  had  been  stolen  were  restored  to  the  possession  of  the 
real  owner  and  were  under  his  control,  and  having  been  so  restored, 
they  were  put  again  into  the  possession  of  Rogers  for  a  specific  pur- 
pose, which  he  fulfilled.  It  seems  then  to  me  that  when,  the  second 
time,  they  reached  the  hands  of  Rogers,  they  had  no  longer  the  cliar- 
acter  of  stolen  goods.  Then,  if  that  would  be  the  case,  supposing  the 
policeman  to  be  out  of  the  question,  does  the  interference  of  the  police- 
man according  to  the  facts  here  stated  make  any  difference?  I  think 
not.  It  is  the  master  who  finds  the  goods  and  sends  for  a  policeman  ; 
and  it  is  by  the  authority  of  the  master  that  the  policeman  takes  and 
keeps  the  goods,  and  afterwards  hands  them  back  to  Rogers.  Indeed, 
it  seems  to  me  that  all  that  was  done  was  done  by  Turner's  authority ; 
and  that  it  must  be  considered  that  the  property  was  under  the  control 
of  the  real  owner  when  he  sent  Rogers  witli  them  to  the  prisoner.  In 
this  state  of  facts,  the  interference  of  the  policeman  seems  to  me  of 
no  importance. 

Cresswell,  J.  I  do  not  dissent  from  the  decision  that  this  con- 
viction is  wrong  ;  but  as  we  are  called  upon  in  this  court  to  give  the 
reasons  of  our  judgment,  I  must  say  that  I  cannot  concur  in  all  the 
reasons  which  I  have  heard  given  in  this  case.  If  it  had  been  neces- 
sary to  hold  that  a  policeman,  by  taking  the  stolen  goods  from  the 
pocket  of  the  tliief,  restores  the  possession  to  the  owner,  I  should  dis- 
sent. I  think  that  we  caimot  put  out  of  question  the  interference  of 
the  policeman  ;  and  that  whilst  the  goods  were  in  his  hands  they  were 
in  the  custody  of  the  law  ;  and  that  the  owner  could  not  have  de- 
manded them  from  the  policeman  or  maintained  trover  for  them.  But 
as  the  case  finds  that  the  policeman  gave  them  back  to  Rogers,  and 


SECT.  11.]  REGINA    V.    SCHMIDT.  805 

then  the  owner  desh-ed  him  to  go  and  sell  them  to  Dolan,  I  think  that 
Kogers  was  employed  as  an  agent  of  the  owner  in  selling  them,  and 
that  consequently  Dolan  did  not  feloniously  receive  stolen  goods. 

Platt,  ]>.  I  am  of  the  same  opinion.  The  case  is,  that  tlie  stolen 
goods  were  found  by  the  owner  in  the  pocket  of  the  thief.  They  were 
restored  to  his  possession,  and  it  does  not  appear  to  me  very  material 
whether  that  was  done  by  his  ovvn  hands  or  by  the  instrumentality  of 
the  policeman.  Things  being  in  that  state,  it  seems  to  have  come 
into  their  heads  tliat  tliey  might  catch  the  receiver ;  and  it  was  sup- 
posed that  by  putting  the  stolen  property  back  into  the  custody  of 
Rogers,  they  could  place  all  parties  statu  quo  they  were  when  the 
property  was  found  in  the  pocket  of  Rogers  ;  but  I  agree  with  the  rest 
of  the  court  that  the  Act  of  Parliament  does  not  apply  to  a  case  of  this 
kind  ;  for  if  it  did,  I  see  no  reason  why  it  should  not  equally  apply  to 
restored  goods  stolen  ten  years  ago. 

Williams,  J.  The  reason  why  I  think  the  conviction  w^-ong  is,  that 
the  receipt,  to  come  within  the  statute,  must  be  a  receipt  without  tlie 
authority  of  the  owner.  Looking  at  the  mere  words  of  the  indictment, 
every  averment  is  proved  by  this  evidence  ;  but  then  the  question  is, 
whether  such  a  receipt  was  proved  as  is  within  the  statute,  namely,  a 
receipt  without  the  owner's  authority  ;  and  here  Rogers  was  employed 
by  the  owner  to  sell  to  Dolan.  Conviction  quashed.^ 


f 

REGINA  V.    SCHMIDT. 
Crown  Case  Reserved.     I860. 

[Reported  10  Cox  0.  C.  172 ;  Law  Reports,  1  Croiun  Cases  Reserved,  15.] 

Case  reserved  for  the  opinion  of  this  court  by  the  deputy-chair- 
man of  the  Quarter  Sessions  for  the  western  division  of  the  County  of 
Sussex. 

John  Daniels,  John  Scott,  John  Townsend,  and  Henry  White  were 
indicted  for  having  stolen  a  carpet-bag  and  divers  other  articles,  the 
property  of  the  Loudon,  Brighton,  and  South  Coast  Railway  Com- 
pany ;  and  the  prisoner,  Fanny  Schmidt,  for  having  feloniously  re- 
ceived a  portion  of  the  same  articles,  well  knowing  the  same  to  have, 
been  stolen. 

The  evidence  adduced  before  me  as  deputy-chairman  of  the  Court 
of  Quarter  Sessions  at  Chichester,  for  the  western  division  of  the 
County  of  Sussex,  on  the  20th  October,  1865,  so  far  as  relates  to  the 
question  I  have  to  submit  to  the  Court  of  Criminal  Appeal,  was  as 
follows :  — 

1  Ace.  Reg.  V.  Hancock,  14  Cox  C.  C.  119;  U.  S.  v.  De  Bare,  6  Biss.  358.  —Ed. 


806  REGINA    V.   SCHMIDT.  [CHAP.  XI. 

On  the  29tli  July,  1865,  two  passengers  by  the  prosecutors'  line  of 
railway  left  a  quantity  of  luggage  at  the  Arundel  station,  which  luggage 
was  shortly  afterwards  stolen  therefrom. 

On  the  ;30th  July  a  bundle  containing  a  portion  of  the  stolen  prop- 
erty was  taken  to  the  Angmering  station,  on  the  same  line  of  railway, 
by  the  prisoner  Townsend,  and  forwarded  by  him  to  the  female  pris- 
oner, addressed  "  Mr.  F.  Schmidt,  Waterloo  Street,  Hove,  Brighton." 
The  bundle  was  transmitted  to  Brighton,  in  the  usual  course,  on  Sun- 
day morning,  the  30th. 

Meanwhile  the  theft  had  been  discovered,  and  shortly  after  the 
bundle  had  reached  the  Brighton  station,  a  policeman  (Carpenter) 
attached  to  the  railway  company,  opened  it,  and  having  satisfied  him- 
self that  it  contained  a  portion  of  the  property  stolen  from  the  Arundel 
station,  tied  it  up  again,  and  directed  a  porter  (Dunstall)  in  whose 
charge  it  was,  not  to  part  with  it  without  further  orders. 

About  8  p.  M.  of  the  same  day  (Sunday,  30th),  the  prisoner  John 
Scott  went  to  the  station  at  Brighton  and  asked  the  porter  (Dunstall) 
if  he  had  got  a  parcel  from  the  Angmering  station  in  the  name  of 
Schmidt,  Waterloo  Street.  Dunstall  replied  "No."  Scott  then  said, 
"  It  is  wrapped  up  in  a  silk  handkerchief,  and  is  directed  wrong ;  it 
ought  to  have  been  dii-ected  to  22  Cross  Street,  Waterloo  Street." 
Dunstall,  in  his  evidence,  added,  "  I  knew  the  parcel  was  at  the 
station,  but  I  did  not  say  so  because  I  had  received  particular  orders 
about  it." 

The  four  male  prisoners  were  apprehended  the  same  evening  in 
Brighton  on  the  charge,  for  which  they  were  tried  before  me  and 
convicted. 

On  Monday  morning,  the  31st  July,  the  porter  (Dunstall),  by  the 
direction  of  the  policeman  (Carpenter)  took  the  bundle  to  the  house 
No.  22  Cross  Street,  Waterloo  Street,  occupied  as  a  lodging-house  and 
beer-house  by  the  female  prisoner  and  her  husband  (who  was  not  at 
home  or  did  not  appear),  and  asked  if  her  name  was  Schmidt,  on 
ascertaining  which  he  left  the  bundle  with  her  and  went  away.  Car- 
penter and  another  policeman  then  went  to  the  house,  found  the  bundle 
unopened,  and  took  the  prisoner  to  the  town  hall. 

All  the  prisoners  were  found  guilty,  and  I  sentenced  each  of  them  to 
six  months'  imprisonment  with  hard  labor.  They  are  now  in  Petworth 
jail  in  pursuance  of  that  sentence. 

At  the  request  of  the  counsel  for  the  female  prisoner  I  consented  to 
reserve  for  the  opinion  of  this  court  the  question,  — 

Whether  the  goods  alleged  to  have  been  received  by  her  had  not, 
under  the  circumstances  stated,  lost  their  character  of  stolen  property, 
so  that  she  ought  not  to  have  been  convicted  of  receiving  them  with 
a  guilty  knowledge  within  the  statute.  Hasler  Hollist. 

Pearce  {WUloughhy  with  him),  for  the  prisoner.  The  conviction  is 
wrong.     To  support  a  conviction  for  receiving  stolen  goods,  it  must 


SECT.  II.]  REGINA   V.   SCHMIDT.  807 

appear  that  the  receipt  was  without  the  owner's  authority.  In  this 
case,  in  consequence  of  the  conduct  of  the  railway  company,  the 
property  had  lost  its  character  of  stolen  property  at  the  time  it  was 
delivered  at  the  receiver's  house  by  the  railway  porter.  The  property 
is  laid  in  the  indictment  as  the  property  of  the  railway  company,  and 
Carpenter  was  not  an  ordinary  policeman,  but,  as  the  case  states,  a 
policeman  attached  to  the  railway  company.  He  opens  the  bundle, 
and  finding  therein  some  of  the  stolen  property,  he  gives  it  to  Dun- 
stall,  and  orders  it  to  be  detained  until  further  orders,  and  in  the 
meantime  the  thieves  were  arrested  ;  Carpenter  then  directs  Dunstall 
to  take  the  bundle  to  the  receiver's  house,  so  that  the  receiver  got  the 
stolen  property  from  the  railway  company,  who  alone  on  tliis  indict- 
ment are  to  be  regarded  as  the  owners  of  the  property.  The  railway 
company,  the  owners,  having  got  their  property  back,  make  what  must 
be  considered  a  voluntary  delivery  of  it  to  the  receiver.  The  case  is 
similar  to  Regina  r.  Dolan,  6  Cox  C.  C.  449  ;  1  Dears.  C.  C.  436, 
where,  stolen  goods  being  found  in  the  pockets  of  the  thief  by  the 
owner,  who  sent  for  a  policeman,  and  then,  to  trap  the  I'eceiver,  the 
goods  were  given  to  the  thief  to  take  them  to  the  receiver's,  which  he 
did,  and  the  receiver  was  afterwards  arrested,  it  was  held  that  the 
receiver  was  not  guilty  of  feloniously  receiving  stolen  goods,  inasmuch 
as  they  were  delivered  to  him  under  the  authority  of  the  owner.  In 
that  case  Regina  v.  Lyons,  C.  &  M.  217,  was  expressly  overruled. 
Lord  Campbell,  C.  J.,  said,  in  Regina  v.  Dolan,  "If  an  article  once 
stolen  has  been  restored  to  the  owner,  and  he  having  had  it  fully  in  his 
possession,  bails  it  for  any  particular  purpose,  how  can  any  person 
who  receives  the  article  from  the  bailee  be  said  to  be  guilty  of  receiv- 
ing stolen  goods  within  the  meaning  of  the  Act  of  Parliament?" 

Hurst,  for  the  prosecution.  Unless  this  case  is  distinguishable  from 
Regina  v.  Dolan,  the  conviction,  it  must  be  conceded,  is  wrong.  But 
the  facts  of  this  case  are  more  like  the  view  taken  by  Cresswell,  J.,  in 
Regina  v.  Dolan,  "That  while  the  goods  were  in  the  hands  of  the 
policeman,  they  were  in  the  custody  of  the  law  ;  and  the  owner  could 
not  have  demanded  them  from  the  policeman,  or  maintained  trover 
for  them."  In  that  case  the  real  owner  intervened,  and  had  manual 
possession  of  the  stolen  goods  ;  here  he  does  not.  The  goods  be- 
longed to  the  railway  passenger,  and  the  company  are  only  bailees. 
[Mellor,  J.  The  policeman  merely  opened  the  bundle  in  the  course 
of  its  transit  to  see  what  was  in  it,  and  then  sent  it  according  to  its 
direction.  It  was  in  the  hands  of  the  policeman,  not  of  the  company. 
Erle,  C.  J.  Suppose  a  laborer  steals  wheat,  and  he  sends  it  by  a  boy 
to  his  accomplice,  and  the  policeman  stops  the  boy,  ascertains  what  he 
has  got,  then  tells  him  to  go  on,  and  follows  and  apprehends  the  ac- 
complice, is  not  the  accomplice  guilty  of  feloniously  receiving?  Mel- 
lor, J.  Here  the  policeman  does  nothing  to  alter  the  destination  of 
the  bundle.  The  element  of  the  real  owner  dealing  with  the  stolen 
property  is  wanting  in  this  case.     Keating,  J.     Scott  directs  the  ad- 


808  RECHNA   V.    SCHMIDT.  [CHAP.  XI. 

dress  to  be  changed.]  The  bundle  was  sent  b}-  the  thieves  through  the 
railway  compan3-  to  the  receivers  ;  the  real  owner  had  nothing  to  do 
with  this  part  of  the  transaction.  [Lush,  J.  If  the  true  owner  had 
sued  the  company  for  the  property,  the  company  could  not  have  jus- 
tified detaining  or  converting  it.]  If  a  policeman  knows  of  stolen 
goods  being  in  the  hands  of  an  innocent  agent,  and  does  not  take 
possession  for  the  owner,  and  the  innocent  agent,  by  the  policeman's 
directions,  delivers  them  to  a  receiver,  that  does  not  prevent  the 
receiver  being  guilt}'  of  feloniously  receiving. 

Pearce,  in  reply.  Before  the  bundle  was  sent  out  for  delivery  the 
thieves  were  in  custody,  and  having  secured  tliem,  Carpenter  then 
gives  orders  for  the  bundle  to  be  delivered  to  the  receiver.  Carpenter 
was  the  servant  of  the  railway  company,  who  are  the  owners  for  the 
purpose  of  this  indictment,  and  the  delivery  therefore  was  by  the 
owners. 

[Erle,  C.  J.,  and  Mkllor,  J.,  were  of  opinion  that  the  conviction 
was  right,  but  Martin,  B.,  Keating,  and  Lush,  J  J.,  held  the  convic- 
tion wrong.  In  consequence  of  the  prisoner  having  suffered  half  the 
term  of  imprisonment  from  inabilitj'  to  get  bail  and  the  further 
unavoidable  dela}',  the  case  was  not  sent  to  be  argued  before  all  the 
judges.] 

Martin,  B.  I  think  that  this  conviction  was  wrong  on  two  grounds, 
the  one  substantial,  the  other  formal.  I  think  that  Mr.  Pearce's  argu- 
ment, founded  on  the  indictment,  that  the  property  is  there  laid  to  be 
property  of  the  railway  compan}',  is  well  founded  ;  and  it  seems  to  me 
that  Dolan's  case  applies  to  this. 

Erle,  C.  J.  I  am  of  opinion  that  the  conviction  was  right.  The 
question  is  whether,  at  the  time  this  stolen  property'  was  received  by 
the  prisoner,  it  was  the  property  of  the  London  and  Brighton  Railway 
Compan}" ;  and  if  so  whether,  when  the  policeman  Carpenter  caused 
the  deliveiy  to  be  stopped  for  the  purpose  of  detecting  the  parties 
implicated,  it  thereb}'  lost  the  character  of  stolen  property.  If  it  had 
lost  the  character  of  stolen  property  at  the  time  it  was  received  by  the 
prisoner,  the  receiving  by  her  will  not  amount  to  felony.  But  in  this 
case  I  think  that  the  railway  compan}',  when  they  took  this  bundle  into 
their  possession,  were  acting  as  bailees  of  the  thief,  and  were  innocent 
agents  in  forwarding  it  to  the  receiver,  and  that  the  things  did  not  lose 
their  character  of  stolen  property  by  what  was  done  bj'  the  policeman. 

Keating,  J.  I  agree  with  my  brother  Martin  that  the  conviction 
"was  wrong.  It  seems  conceded,  on  the  authoritj'  of  Dolan's  case,  that  if 
the  property  had  got  back  again  for  an}'  time  into  the  hands  of  the  true 
owner,  the  conviction  would  be  wrong.  It  is  said  that,  in  this  case, 
the  owners  mentioned  in  the  indictment,  the  railway  company,  were 
not  the  real  owners,  whereas  in  Dolan's  case  the  real  owner  intervened. 
But  I  think  there  is  no  distinction  in  principle  between  this  case  and 
that.  The  railway  company  are  alleged  in  the  indictment  to  be  the 
owners  of  the  property,  and  we  sitting  here  can  recognize  no  other 


SECT.  II.]  KEGINA    V.    SCHMIDT.  809 

persons  than  them  ;  they  are  the  owners  from  whom  the  property'  was 
stolen,  and  it  got  back  to  their  possession  before  it  was  received  hy  the 
prisoner.  I  can  see  no  real  distinction  between  this  case  and  Dolan's. 
All  the  reasons  given  for  the  judgment  in  that  case  apply  equally  to 
the  case  of  the  ownership  in  this  case.  The  principle  I  take  to  be, 
that  when  once  the  party  having  the  right  of  control  of  the  property 
that  is  stolen  gets  that  control,  the  transaction  is  at  an  end,  and  there 
can  be  no  felonious  receipt  afterwards.  I  think  the  test  put  by  m}' 
brother  Lush  in  the  course  of  the  argument,  as  to  the  real  owner  suing 
the  railway  compan}'  for  the  property  after  they  had  got  the  control  of 
it,  is  decisive  of  the  matter. 

Mellor,  J.  I  agree  entirely'  with  my  brother  Erie,  C.  J.,  and  think 
the  conviction  was  right.  The  indictment  righth'  alleges  the  property 
to  have  been  in  the  railwa}'  company  at  the  time  it  was  stolen  ;  thej' 
bad  the  bailment  of  it  from  the  true  owner.  Then  it  is  stolen  while  in 
their  custod}',  and  the  next  step  is,  the  thieves  afterwards  send  a  por- 
tion of  it  by  the  same  railway  company  to  be  forwarded  to  the  receiver 
at  Brighton  ;  so  that  the  railway  company  get  possession  of  this  part 
from  the  thieves  under  a  new  bailment.  Then  the  policeman  examines 
the  propert}'  and  directs  it  not  to  be  forwarded  until  further  orders  ; 
but  this  v/as  not  done  with  the  view  of  taking  possession  of  it  or  alter- 
ing its  transit,  but  merely  to  see  whether  it  was  the  stolen  property. 
I  agree  with  Dolan's  case,  but  in  the  present  case  I  think  the  stolen 
property  had  not  got  back  to  tlie  true  owner. 

Lush,  J.  I  agree  with  my  brothers  Martin,  B.,  and  Keating,  J., 
and  think  that  the  conviction  was  wrong.  I  think  that  the  goods  had 
got  back  to  the  owner  from  whom  the}'  had  been  stolen.  Had  the  rail- 
wa}'  company-  innocently  carried  the  goods  to  their  destination  and 
delivered  them  to  the  prisoner,  the  felonious  receipt  would  have  been 
complete  ;  but  while  the  goods  are  in  their  possession,  having  been 
previously. stolen  from  them,  the  goods  are  inspected,  and  as  soon  as  it 
was  discovered  that  they  were  the  goods  that  had  been  stolen,  the 
railwa}^  compan}-  did  not  intend  to  carry  them  on  as  the  agents  of  the 
bailor ;  the  forwarding  them  was  a  mere  pretence  for  the  purpose  of 
finding  out  who  the  receiver  was.  It  was  not  competent  to  the  railway 
company  to  sa}-,  as  between  them  and  the  original  bailor,  that  they  had 
not  got  back  the  goods.  They  w^ere  bound  to  hold  them  for  him.  In 
afterwards  forwarding  the  goods  to  the  prisoner,  the  compan}'  was 
using  the  transit  merel}-  as  the  means  of  detecting  the  receiver. 

Martin,  B.  I  only  wish  to  add  that  I  meant  to  say  that  I  think 
the  conviction  wrong  in  substance  in  consequence  of  the  interference  of 
the  policeman  with  the  propert}-,  and  this  independently  of  the  form 
of  indictment.  Conviction  quashed} 

1  Ace.  Reg.  V.  Villensky,  [1892]  2  Q.  B.  597.  — Ed. 


810  REGINA  V.   CARR.  [CHAP.  XI. 


REGINA  V.  CARR. 

Central  Criminal  Court.     1877. 

[Reported  15  Cox  C.  C.     131  n.]  \ 

John  Carr  was  indicted  for  stealing  168  bonds  of  the  Peruvian 
Government,  tlie  property  of  Lionel  Cohen  and  others  ;  second  count 
for  feloniously  receiving  the  same. 

-There  were  other  counts  charging  him  as  an  accessary  before  and 
after  the  fact. 

The  Solicitor  General  and  Poland  were  counsel  for  the  prosecution, 
and  Besley  and  Grain  for  the  defence. 

The  bonds  in  question,  on  the  2d  June,  1877,  were  transmitted  by 
the  prosecutors  to  a  customer  in  Paris.  They  were  traced  safely  as 
far  as  Calais  and  were  stolen  from  the  train  after  leaving  that 
place. 

On  the  4th  of  September  the  prisoner  was  found  dealing  with  them 
in  London,  and  the  question  arose  as  to  the  jurisdiction  of  this  court 
to  try  the  case,  the  robbery  having  been  committed  in  France. 

The  Solicitor  General  submitted  that  the  prosecutors  never  having 
parted  with  their  property  in  the  bonds,  they  were  still  under  the  pro- 
tection of  the  law,  and  that  the  subsequent  possession  of  the  bonds 
in  this  country  was  sufficiently  recent  to  enable  the  jury  to  find  a 
verdict  of  larceny  against  a  person  who  was  dishonestly  dealing  with 
them  here.  The  decision  in  Rex  v.  Prowes,  1  Moody  C.  C.  349,  was 
certainly  opposed  to  this  view  ;  but  no  reasons  were  given  for  that 
judgment,  and  a  doubt  as  to  the  soundness  of  the  decision  was  ex- 
pressed by  Parke,  B.,  in  Regina  v.  Madge,  9  C.  &  P.  29.  The  case  of 
Regina  v.  Debrueill,  11  Cox  C.  C.  207,  was  referred  to.  As  to  the 
counts  charging  the  prisonei*  with  receiving,  and  also  as  an  accessary, 
the  24  &  25  Vict.  c.  94  contemplated  a  case  of  this  kind,  where  the 
original  offence  was  committed  abroad. 

Besley  relied  on  the  decision  in  Rex  v.  Prowes,  ubisnp.,  and  Regina 
V.  Hogetoran,  Cent.  Crim.  Court  Sess.  Paper,  vol.  79,  268,  and  Regina 
V.  Nadal,  84  Cent.  Crim.  Court  Sess.  Paper,  295. 

Denman,  J.  There  can  be  no  doubt  that  this  was  a  larceny  fully 
completed  in  France.  I  do  not  at  all  say  that  it  might  not  be  a  very 
reasonable  thing  that  any  one  afterwards  dealing  here  with  property 
so  stolen  might  make  cogent  evidence  of  having  received  them  know- 
ing them  to  have  been  stolen,  just  as  much  as  if  they  had  been  stolen 
in  England  ;  but  it  appears  to  me  that  the  point  has  been  too  solemnly 
decided  for  me  to  give  the  go-by  to  those  decisions.  It  has  been 
solemnly  decided  and  acted  upon  so  often  that  there  is  no  jurisdiction 
in  England  to  try  a  case  where  the  stealing  has  been  committed  abroad, 
either  against  the  principal  or  the  accessory,  that  I  have  nothing  to  do 
but  to  act  upon  those  decisions  and  to  direct  an  acquittal  in  this  case. 


SECT.  II.]  STATE  V.    IVES.  811 

I  entertain  no  doubt  that  the  case  of  Rex  v.  Prowes,  ubi  sup.,  is 
directly  in  point,  and  Kegina  v.  Madge,  ubi  sup.,  fortifies  it  to  the 
extent  of  recognizing  and  acting  upon  it.  Debrueill's  case  also 
decides  tliat  a  conviction  of  receiving  under  similiar  circumstances 
could  not  be  sustained.     The  prisoner  must  therefore  be  acquitted. 


STATE  V.   IVES. 
Supreme  Court  of  North  Carolina.     1852.  ' 

[Reported  13  Iredell,  338.] 

Appeal  from  the  Superior  Court  of  Law  of  Currituck  County,  at  the 
fall  term,  1851,  his  honor  Judge  Settle  presiding. 

The  defendant  was  indicted  for  receiving  stolen  goods,  and  was  con- 
victed upon  the  following  counts  in  the  bill  of  indictment :  — 

5th  count.  And  the  jurors,  etc.,  do  further  present,  that  the  said 
Josiah  Ives,  afterwards,  to  wit,  on  the  1st  day  of  February,  a.  d. 
1851,  in  the  county  aforesaid,  with  force  and  arms,  one  bale  of  cotton, 
of  the  value  of  ten  shillings,  and  one  barrel  of  tar,  of  the  value  of  six 
shillings,  of  the  goods  and  chattels  of  said  Caleb  T.  Sawyer,  before 
then  feloniously  stolen,  taken,  and  carried  away,  feloniously  did  re- 
ceive and  hire,  he,  the  said  .Josiah  Ives,  then  and  there  well  knowing 
the  said  goods  and  chattels  to  have  been  feloniously  stolen,  taken,  and 
carried  away,  contrary  to  the  form  of  the  statute  in  such  cases  made 
and  provided,  and  against  the  peace  and  dignity  of  the  State. 

6th  count./  And  the  jurors,  etc.,  do  further  present,  that,  at  and  in 
the  county  af^i-esaid,  on  the  1st  day  of  March,  1851,  certain  goods  and 
chattels,  to  wit,  one  bale  of  cotton,  of  the  value  of  ten  shillings,  and 
one  barrel  of  tar,  of  the  value  of  six  shillings,  of  the  goods  and  chattels 
of  Caleb  T.  Sawyer,  feloniously  were  stolen,  taken,  and  carried  away, 
by  some  person  to  the  jurors  unknown  ;  and  that  the  said  Josiah  Ives, 
afterwards,  to  wit,  on  the  2d  day  of  March,  1851,  in  the  county  afore- 
said, the  said  bale  of  cotton  and  the  said  barrel  of  tar  feloniously  did 
have  a*nd  receive,  he,  the  said  Josiah  Ives,  on  the  day  and  year  last 
aforesaid,  in  the  county  aforesaid,  well  knoAving  the  said  bale  of 
cotton  and  the  said  barrel  of  tar  to  have  been  theretofore  feloniously 
stolen,  taken,  and  carried  away,  contrary  to  the  form  of  the  statute  in 
such  case,  made  and  provided,  and  against  tho  peace  and  dignity  of 
the  State. 

There  was  a  motion  in  arrest  of  judgment,  which  was  overruled. 
Judgment  against  the  defendant,  from  which  he  appealed  to  the 
Supreme  Court. 

Pearson,  J.  The  defendant  was  convicted  upon  the  fifth  and  sixth 
counts  in  the  bill  of  indictment ;  and  the  case  is  here  upon  a  motion  in 


812  STATE  V.   IVES.  [CHAP.  XI. 

arrest  of  judgment.     The  fifth  count  was  abandoned  by  the  Attorney 
General,  and  the  question  is  upon  the  sixth  count. 

A  receiver  of  stolen  goods  is  made  an  accessary  by  the  statute  of 
Anne ;  and  it  is  provided,  by  another  section  of  that  statute,  that,  if 
the  principal  felon  escapes  and  is  not  amenable  to  the  process  of  the 
law,  then  such  accessory  may  be  iudicted,  as  for  a  misdemeanor.  This 
statute  was  so  construed  as  to  require,  in  the  indictment  for  a  misde- 
meanor, an  averment  that  the  principal  felon  was  not  amenable  to  the 
process  of  the  law.  fFoster,  373.  Our  statute.  Rev.  Stat.  c.  34,  §§  53 
and  54,  is  taken  from  the  statute  of  Anne,  and  has  received  a  similar 
construction.  Groff' s  case,  1  Mur.  270,  and  see  the  remarks  of  Hen- 
derson, judge,  in  Good's  case,  1  Hawks,  463. 

The  objection  taken  to  the  indictment,  is  the  absence  of  an  averment, 
that  the  principal  felon  is  not  amenable  to  the  process  of  the  Taw  ;  and 
it  is  insisted  that,  as  the  principal  felon  is  alleged  to  be  some  person 
to  the  jurors  unknown,  it  could  not  be  averred  that  he  had  "  escaped 
and  eluded  the  process  of  the  law,"  in  the  words  used  by  our  statute, 
and  it  was  urged  that  the  statute  did  not  apply  to  a  case  of  the  kind. 

The  Attorney  General  in  reply  took  the  position,  that  the  averment 
that  the  principal  felon  was  some  person  to  the  jurors  unknown,  neces- 
sarily included  and  amounted  to  an  averment,  that  he  had  escaped  and 
eluded  the  process  of  the  law,  so  as  not  to  be  amenable  to  justice. 
This  would  seem  to  be  so  ;  but  we  give  no  definite  opinion,  because 
there  is  another  defect  in  the  count,  which  is  clearly  fatal. 

After  averring  that  the  cotton  and  tar  had  been  stolen  by  some  per- 
son to  the  jurors  unknown,  the  indictment  proceeds  :  "Afterwards, 
etc.,  the  said  Josiah  Ives,  the  said  bale  of  cotton  and  the  said  barrel 
of  tar  feloniously  did  have  and  receive,  well  knowing  the  said  bale  of 
cotton  and  barrel  of  tar  to  have  been  theretofore  feloniously  stolen," 
etc.  There  is  no  averment  from  whom  the  defendant  received  the  cot- 
ton and  tar.  "We  cannot  imply  that  he  received  them  from  the  person 
who  stole  them.  It  may  be  that  he  received  them  from  some  third 
person ;  and  this  question  is  presented :  A.  steals  an  article,  B. 
receives  it,  and  C.  receives  it  from  B.  Does  the  case  fall  within  the 
statute?  We  think  not.  The  statute  obviously  contemplates  a  case 
where  goods  are  received  from  the  person  who  stole  them ;  he  is 
termed  the  principal  felon.  In  the  case  put  above,  A.  is  the  principal 
felon,  B.  is  his  accessory,  but  C.  is  a  receiver  from  a  receiver, — an 
accessory  of  an  accessory.  In  fact,  it  cannot  be  said  whether  A.  or  B. 
is  the  principal  felon  in  regard  to  him. 

The  statute  does  not  provide  for  such  a  case.  It  makes  the  receh^er 
an  accessory ;  and  in  case  the  principal  is  not  amenable  to  the  process 
of  law,  such  accessory  may  be  prosecuted  as  for  a  misdemeanor. 
Consequently  it  is  necessary  to  point  out  the  principal,  and  the  matter 
is  involved  in  the  doctrine  of  "  principal  and  accessory."  This  and 
many  other  omissions  are,  in  England,  remedied  by  the  statutes,  W. 
III.  and  G.  II.,  by  which  "  the  act  of  receiving"  is  made  a  substantive 


SECT.  III.  I  REGINA   V.   ADAMS.  813 

felony,  without  reference  to  the  person  who  stole  or  the  person  from 
wliom  tlie  goods  are  received.  Under  those  statutes,  the  fifth  count, 
which  the  Attorney  General  has  properly  abandoned,  would  be  good; 
for  the  offence  is  to  "  receive  and  have  "  stolen  goods.  We  have  not 
adopted  those  statutes.  Of  course  the  decisions  and  forms  in  the  mod- 
ern English  books  cannot  aid  us.  Duncan's  case,  6  Ired.  98,  presents 
another  instance,  to  provide  for  which  we  have  no  statute. 

Per  Curiam.     Judgment  below  reversed,  and  judgment  arrested.^ 


SECTION   III. 

*  Gruilty  Knowledge. 

REGINA   V.    ADAMS. 
Bristol  Assizes.     1858. 

[Reported  1  Foster  Sf  Finlason,  86.] 

Larceny  and  Receiving,  j  The  woman  was  charged  with  having 
stolen,  and  the  man  (her  husbrtud)  with  having  received,  eleven  mining 
tools.  The  evidence  was  that  the  woman  had  picked  them  up  from  a 
rubbish-heap,  where  they  had  been  placed  (not  as  rubbish),  on  the 
premises  of  the  prosecutor,  and  delivered  them  to  the  man,  telling  him 
how  she  had  obtained  them,  and  that  he  had  sold  them  as  old  ironT"  / 

CiioWDEK,  J.  {to  the  jury),  after  stating  to  them  the  law  as  to  the 
duty  of  a  finder  of  property,  as  applicable  to  the  charge  against  the 
woman,  and  leaving  the  case  as  against  her  with  them  :  Before  you 
can  convict  the  man  you  must  be  satisfied  that  he  knew  that  the  goods 
had  been  stolen.  It  may  be  that  he  did  not  know  (upon  the  law  as  I 
have  laid  it  down,  as  to  the  duty  of  the  finder  of  property  to  take 
proper  means  to  find  the  owners)  that  this  was  a  theft. ^  If  so,  he 
cannot  be  guilty  of  receiving  with  a  guilty  knowledge  of  the  goods 
being  stolen. 

J3ot]i  guilty  ;  recommended  to  mercy  ;  fourteen  days'  imprisonment. 

1  See  Eex  v  Messingham,  1  Moo.  C.  C.  2.'j7 ,  Reg.  v.  "Reardon,  L.  R.  1  C.  C.  R.  31. 
—  En. 

-  That  is,  it  is  apprehended  that  the  other  prisoner  had  not  taken  proper  means 
to  find  the  owner.  —  Rep. 


814  COMMONWEALTH   V.   LEONARD.  [CHAP.  XI. 

REGINA  V.   WHITE. 

Winchester  Assizes.     1859. 

[Reported  1  Foster  ij-  Finlason,  665.] 

Receiving.  The  prisoner  was  charged ,  with  receiving  lead,  the 
property  of  the  Queen,  he  well  knowing  it  to  have  been  stolen. 

BuAMWELL,  B.  {to  the  jury).  The  knowledge  charged  in  this  indict- 
ment need  not  be  such  knowledge  as  would  be  acquired  if  the  prisoner 
had  actually  seen  the  lead  stolen  ;  it  is  sufficient  if  you  think  the  cir- 
cumstances were  such,  accompanying  the  transaction,  as  to  make  the 
prisoner  believe  that  it  had  been  stolen.  Guilty, 


COMMONWEALTH  v.   LEONARD. 
Supreme  Judicial  Court  of  Massachusetts.     1886. 

[Reported  140  Massachusetts,  473.] 

Indictment  in  three  counts.  The  first  count  alleged  that  on  July  1, 
1883,  certain  articles,  the  goods,  chattels,  and  property  of  the  Boston 
and  Lowell  Railroad  Corporation,  were  feloniously  stolen,  and  that 
the  defendant  afterward,  on  the  same  day,  "  the  goods,  chattels,  and 
property  aforesaid,  so  as  aforesaid  feloniously  stolen,  taken,  and 
carried  away,  feloniously  did  receive  and  have,  and  did  then  and  there 
aid  in  the  concealment  of  the  same,"  he  "  well  knowing  the  said  goods, 
chattels,  and  property  to  have  been  feloniously  stolen,  taken,  and 
carried  away." 

The  second  and  third  counts  were  similar  in  form,  but  the  property 
was  in  each  differently  described  and  at  a  different  date,  namely,  on 
August  1,  1883,  and  September  1,  1883,  respectively.^ 

The  defendant  asked  the  judge  to  instruct  the  jury  as  follows : 
"1.  If  the  jury  are  not  satisfied  beyond  a  reasonable  doubt  that  the 
accused  knew  that  the  goods  were  stolen  he  is  entitled  to  an  acquittal. 
2.  To  justify  a  conviction  it  is  not  sufficient  to  show  that  the  accused 
had  a  general  knowledge  of  the  circumstances  under  which  the  goods 
were  stolen,  unless  the  jury  are  also  satisfied  that  he  knew  that  the 
circumstances  were  such  as  constituted  larceny." 

The  judge  refused  to  give  these  instructions,  and  upon  the  matters 
embraced  therein  instructed  the  jury  as  follows  :  — 

"He  must  know  that  the  goods  were  stolen,  but  he  does  not  need  to 
know  the  hour  nor  day  they  were  stolen  ;  he  must  undoubtedly  have 
notice  which  would  put  him  on  his  guard  as  knowledge  that  the  goods 

^  Part  of  the  case,  not  involving  a  question  of  guilty  knowledge,  is  omitted. 


SECT.  III. J  COMMONWEALTH   V.    LEONARD.  815 

were  acquired  and  turned  over  to  him  by  a  person  not  taking  them  by 
mistake,  not  by  right,  but  taking  them  as  thieves  take  them,  that  is, 
for  the  purpose  of  defrauding  the  raih'oad  and  cheating  them  out  of 
their  property." 

The  defendant's  counsel  here  suggested  "  by  larceny,"  and  tlie 
judge  gave  this  further  instruction  :  — 

"  By  the  taking  and  carrying  away  of  property  it  is  the  fraudulent 
taking  away  of  the  property  of  another  for  the  purpose  of  converting 
it  to  the  taker's  use  to  deprive  the  owner  of  it.  These  goods  must 
have  been  taken  that  way  and  were  stolen  goods  ;  they  must  have 
been  taken  by  McCarthy  as  thieves  take  them,  not  by  mistake  or 
accident,  or  by  taking  from  those  who  had  no  right  to  give,  but  taking 
when  he  knew  that  he  had  no  right  to  take  them." 

The  jury  returned  a  verdict  of  guilty  on  the  third  count,  and  of  not 
guilty  on  the  other  counts,  and  the  defendant  alleged  exceptions. 

Field,  J.  The  offence  of  receiving  stolen  property,  knowing  it 
to  have  been  stolen,  must  be  considered  as  distinct  from  the  offence  of 
receiving  embezzled  property  knowing  it  to  have  been  embezzled.  Pub. 
Sts.  c.  203,  §§  48,  51,  although  embezzlement  under  our  statutes  has 
been  held  to  be  a  species  of  larceny.  Commonwealth  v.  Pratt,  132 
Mass.  246.  The  punishments  of  the  two  offences  may  be  different,  as 
the  offence  of  receiving  embezzled  goods  may  be  punished  by  a  fine 
without  imprisonment.  If  the  property  had  actually  been  stolen,  a  be- 
lief on  the  part  of  the  defendant  that  it  had  been  stolen  is  tantamount 
to  knowledge.  If  the  defendant  knew  all  the  facts  and  the  facts  con- 
stituted larceny  as  distinguished  from  embezzlement,  it  would  be  no 
defence  that  the  defendant  thought  that  the  facts  constituted  embez- 
zlement. If  the  defendant  did  not  know  the  facts,  but  believed  from 
the  circumstances  that  the  property  had  been  either  embezzled  or 
stolen,  and  it  had  been  actually  stolen,  it  was  competent  for  the  jury  to 
find  the  defendant  guilty  of  the  offence  charged.  The  second  request 
for  instructions  was  therefore  rightly  refused. 

The  first  request  for  instructions  states  the  law  with  substantial  cor- 
rectness. It  is  contended  that  the  instructions  given  on  this  point, 
rightly  construed,  are  the  same  in  effect.  We  find  it  unnecessary  to 
decide  whether  the  case  called  for  a  more  careful  "definition  of  larceny 
as  distinguished  from  embezzlement  or  from  wilful  trespass. 

Exceptions  sustained? 

1  See  Reg.  v.  Ryraes,  3  C.  &  K.  326.  —  Ed, 


816  BUKGLARY.  [CHAP.  XII. 


CHAPTER  XII. 
CRIMES  AGAINST  THE  DWELLING-HOUSE. 


SECTION   I. 

Burglary. 

SvAUNPOrtD,  Pleas  of  the  Crown,  30  a.  Burglars  are  those  who  feloni- 
ously in  time  of  peace  break  houses,  churches,  walls,  towers,  or  gates, 
for  which  burglary  they  shall  be  hanged,  though  they  took  nothing  away. 
Uijmtet  tit.  Coron.  in  Fitz.  p.  264,  p.  185,  &  p.  178.  But  3et  they  ought 
to  have  felonious  intent  to  rob  or  kill  or  do  other  felony.  For  if  a  man 
be  indicted  quod  dotnum  I.  S.felonice  fregit  ad  ipsuni  verherandum^ 
that  is  only  trespass,  for  by  this  his  intent  in  the  breaking  is  made 
known.  It  is  otherwise  if  it  be  domum  fregit  ad  ipsum  interficiendum. 
&c.  But  if  a  man  be  indicted  quod  clausum,  I.  S .  felonice  fregit  ad 
ipsimi  interficiendum^  that  is  not  burglar}',  per  Hankford  &  Hill,  M. 
13  H.  4,  f  7.  The  same  is  law  if  he  break  the  house  and  do  not  enter 
into  it.  JiJt  nota  that  for  anything  contained  in  those  books,  burglary 
may  be  done  as  well  b}'  day  as  b}'  night,  «&;c.  But  the  law  is  not  so 
takeii,  for  all  the  indictments  for  burglary  are  quod  noctanter  fregit. 
&c.  Vide  Britton  for  burglars,  fo.  17;  lor  I  do  not  remember  that  I 
have  read  anything  of  it  in  Bracton,  save  that  he  speaks  in  one  place 
in  this  way,  scil.  "  >Si  quis  homsoken^  quae  dicitur  invasio  domus  contra 
pacem,  in  donio  suo  defenderit  &  invasor  occistcs  fuerit  impersequutus. 
&  inultus  remanebit,  dum  tamen  ills  qui  invasus  est,  aliter  se  defendere 
non  potuit.  Quia  dicitur  non  est  dignus  pace  qui  non  vidt  servare 
earn,"  &c. 

1  Hawk.  P.  C.  ch.  17,  Sects.  1,  2,  3,  11,  18,  21.  Burglary  is  a 
felony  at  the  Common  Law,  in  breaking  and  entering  the  mansion- 
house  of  another,  or  (as  some  say)  the  walls  or  gates  of  a  walled  town 
in  the  night,  to  the  intent  to  commit  some  felonj''  within  the  same^ 
whether  the  felonious  intent  be  executed  or  not. 

There  are  some  opinions,  that  burglary-  may  be  committed  at  any 
time  after  sun-set  and  before  sun-risino; ;  Init  it  seems  the  much  better 


SECT.  I.]  ANONYMOUS.  817 

opinion  that  the  word  noctanter,  which  is  precisely  necessary  in  every 
indictment  for  tliis  offence,  cannot  be  satisfied  in  a  legal  sense,  if  it 
appear  upon  the  evidence,  that  there  was  so  much  daylight  at  the  time 
that  a  man's  countenance  might  be  discerned  thereby.^ 

Notwithstanding  some  loose  opinions  to  the  contrary,  there  seems  to 
be  no  good  cause  to  doubt  but  tiiat  both  [an  actual  entry  and  breaking] 
are  required  to  complete  this  offence  ;  for  the  words /"/-er/tV  and  intravit 
l)eing  both  of  them  precisely  necessary  in  the  indictment,  both  must  be 
satisfied.  And  a  fortiori  thei'efore  there  can  be  no  burglary  where 
there  is  neither  of  them  ;  as  if  on  a  bare  assault  upon  a  house,  the 
owner  fling  out  his  money. 

Any  the  least  entry  either  with  the  whole,  or  but  with  part  of  the 
body,  or  with  any  instrument,  or  weapon,  will  satisfy  the  word  i?itravit 
in  an  indictment  of  burglary  ;  as  if  one  do  but  put  liis  foot  over  a 
threshold,  or  his  hand  or  a  hook  or  pistol  within  a  window,  or  turn  the 
key  of  a  door  which  is  locked  on  the  inside,  or  discharge  a  loaded  gun 
into  a  house,  &c. 

A  house  wherein  a  man  dwells  but  for  part  of  the  year  ....  may  be 
called  his  dwelling-house  ;  and  will  sufficiently  satisfy  the  words  donius 
mansionalis  in  the  indictment,  whether  any  person  were  actually 
therein  or  not,  at  the  time  of  llie  offence. 

All  out-buildings,  as  barns,  stables,  dairy-houses,  &c.,  adjoining  to 
a  house,  are  looked  upon  as  part  thereof,  and  consequently  burglary 
may  be  committed  in  them. 


ANONYMOUS. 

Lent   Assizes.     1554. 

[Reported  Di/er,  99a,  pi.  58.] 

One  was  indicted  for  that  he  burglariously  broke  open  a  churcti  in 
the  night  in  order  to  destroy  and  steal  the  goods  of  the  parishioners 
therein  being,  but  took  nothing  away.  And  Bromeley,  J.,  held  clearly 
that  this  is  burglary  ;  but  he  said  that  'it  ought  to  be  broke  and  entered. 

'  In  Com.  V.  Chevalier,  7  Dane  Abr.  134  (1794)  the  jury  found  that  a  breaTibg 
was  not  in  the  night  which  took  place  at  eighteen  minutes  after  two  o'clock  on  the 
morning  of  June  27th. 

Mass.  Pub.  Stats,  ch.  214,  sect.  15.  "When  an  offence  is  alleged  to  have  been  com- 
mitted in  the  night-time,  the  time  called  night-time  shall  be  deemed  to  be  the  time 
between  one  hour  after  the  sun-setting  on  one  day  and  one  hour  before  sun-rising  on 
the  next  day. 


818  ^  ANONYMOUS.  [CHAP.  XII. 

RESOLUTION. 
All  the  Judges  of  England.     1584. 

[Reported  Anderson,  114.] 

All  the  justices  assembled  at  Serjeants'  liin  agreed  that  if  one  break 
the  glass  in  a  window  in  the  dwelling-house  of  any  one,  and  there  with 
iiooks  draw  carpets  out,  and  feloniously  steal  them,  it  is  burglary  if  ii 
be  done  at  night,  though  the  man  who  does  it  do  not  enter  or  break  the 
house  otherwise  ;  and  this  case  was  put  for  a  purpose,  in  order  that  the 
justices  of  Assize  in  the  county  of  Warwick  might  know  the  law  before 
the  Assizes,  where  this  case  was  to  come  in  question  for  an  offence  com- 
mitted at  Erdeburgh  in  said  county.  At  this  time  the  following  case 
was  also  put  by  the  said  justices,  that  thieves  in  the  night  come  to  a 
dwelling,  and  some  one  within  comes  and  opens  the  door,  and  when  it  is 
open,  one  of  the  thieves  intending  to  kill  the  man  shoots  at  him  with  a 
gun,  the  bullet  from  jvhich  misses  the  man  and  breaks  the  wall  on  the 
other  side  of  the  house.  :  And  it  was  agreed  b}-  all  that  this  is  no  burg- 
lary ;  and  this  also  was  in  order  to  know  the  law  in  this  case,  which 
happened  in  the  county  of  Derby  where  they  were  also  justices.  And 
as  bearing  upon  these  cases  an  actual  case  was  put,  which  was  this, 
scil.  :  In  the  night  one  who  intended  to  kill  another  in  a  house  broke  a 
hole  in  the  wall  of  the  dwelling,  and  perceiving  where  the  person  was, 
shot  at  him  through  the  hole  with  a  gun  and  missed  the  person,  which 
was  adjudged  as  burglary  t  so  where  one  broke  a  hole  in  the  wall  and 
seeing  a  man  with  a  purse  of  money  hanging  tVom  his  girdle  coming  by 
the  hole,  snatched  at  the  purse  and  took  it,  this  too  was  agreed  to  be 
burglar}' ;  which  happened  in  Essex.  And  then  it  was  remembered 
that  one  went  to  the  window  of  Mr.  Cave's  stud}'  in  the  county  of 
Leicester,  and  perceiving  a  casket  with  money  in  it,  drew  it  to  the 
window  and  took  money  out  of  it,  and  for  this  he  was  hanged  in 
the  county  of  Leicester.  For  in  all  these  cases  of  burglaiy  there  is  a 
breaking  of  the  house  to  commit  felony  in  the  night ;  which  makes  the 
offence  burglary.  But  in  the  preceding  case  of  shooting  witli  the  gun 
into  the  door  and  breaking  the  wall  with  the  bullet,  it  is  not  a  break- 
ing of  the  house  with  intent  to  commit  felony ;  wherefore  it  is  not 
burglary. 


ANONYMOUS. 
Crown  Case  Reserved.     1594. 

[Reported  il/oore,  660,   pi.  903.] 

It   was   resolved   by   all   the  justices   at   Serjeants'  Inn,   that   the 
breaking  of  a  dwelling-house  at  night  with  intent  to  rob  or  kill  a  man  is 


SECT.  1.]  LE    MOTX'S    CASE.  819 

burglary,  though  no  one  be  in  the  house.  And  if  one  has  two  dwelling- 
houses  wliere  he  lives  in  turn,  if  a  thief  break  at  niglit  the  house  from 
whleh  he  is  absent  it  is  burglary,  and  all  the  old  preeedents  of  indict- 
ments for  burglary  are  noctanier  ei  fdonict^  witlioiit  allegation  of  any 
person  put  in  fear  of  death.  And  the  reason  of  the  old  pi'ecedents 
varying  from  those  of  modern  times  b}'  mentioning  that  one  was  in  fear 
of  death  is  because  the  Statute  23  II.  8  takes  away  clergy  from  a 
burglar  where  any  one  is  put  in  fear  of  death,  but  not  otherwise. 


REX  V.  FIDLING. 
King's  Bench.     1607. 

One  Fidling  was  indicted  for  burglar}- ;  and  the  indictment  was  that 
he  the  mansion  house  of  Afdonie  f regit,  and  him  and  all  his  famil}' 
put  in  terror  of  their  lives,  with  intention  the  said  A  de  bonis  et  2)ecu- 
nils  spoliandis.  Exception  was  taken  to  this  indictment,  because  it 
said  ox\\y  fregit  and  not  intravit,  according  to  the  opinion  of  Bromeley 
in  1  Mar}',  D}-.  fo.  99,  pi.  58.  But  per  Curiam;  The  indictment  is 
good  enough  ;  for  if  he  breaks  the  house  feloniously  with  intent  ut 
sujjra  it  is  burglary,  although  he  does  not  enter. 

It  was  also  objected  that  intentione  ad  spoUandum  shall  be  taken 
only  as  a  trespass ;  but  per  Curiam,  felony  ad  spoUandum  shall  be 
taken  to  be  a  felony. 


LE  MOTT'S  CASE. 

About  1650. 

[Reported  Keljing,  42.J 

At  the  Sessions  I  inquired  of  Le  Mott's  Case,  which  was  adjudged 
in  the  time  of  tliajate  troubles,  and  my  Brother  Wyld  told  me  that  the^ 
case  was  this:)That  thieves  came  with  intent  to  rob  him,  and  finding  , 
the  door  locked  "iTpr  pretended  they  came  to  speak  with  him,  and  there-  . 
upon  a  maid-servant  opened  the  door,  and  they  came  in  and  robbed 
him,  and  this  lieing  in  the  night-time^this  was  adjudged  burglary  an^- 
the  persons  hanged  ;  for  their  intention  being  to  rob,  and  getting  the 
door  open  by  a  false  pretence,  this  was  in  fraudem  legis,  and  so  they 
were  guilty  of  burglary  though  they  did  not  actually  break  the  house, 
for  this  was  in  law  an  actual  breaking,  being  obtained  by  fraud  to  have 

*  This  case,  though  never  before  printed,  is  cited  in  Vaillant's  Dyer,  99  note.  —  Ed. 


820  EEX   V.    LYONS.  [CHAP.  XII. 

the  door  opened ;  as  if  men  pretend  a  warrant  to  a  constable,  and 
bring  him  along  with  them,  and  under  that  pretence  rob  the  house,  if  it 
b'^  in  the  night  this  is  burglary.^ 


REX   V.    GRAY. 

Old  Bailey.     1722. 

[Rf ported  1  Strange,  481.] 

One  of  the  servants  in  the  house  opened  his  lady's  chamber  door 
(which  was  fastened  with  a  brass  bolt)  with  design  to  commit  a  rape ; 
and  KixG,  C.  J.,  ruled  it  to  be  burglar^-,  and  the  defendant  was  con- 
victed and  transported. 


REX   V.   LYONS. 
Crown  Case  Reserved.     1778. 

[Reported  Leach  {Vh  ed.),  185.] 

At  the  Old  Bailey  in  Januar}-  Session,  1778,  Lyon  Lj'ons  and 
Thomas  Miller  were  tried  before  Mr.  Serjeant  Glynn,  Recorder,  for 
burglariously  breaking  and  entering  the  dwelling-house  of  Edward 
Smith,  with  intention  to  commit  a  felon}-. 

The  jury  found  a  general  verdict  guilty^  subject  to  the  opinion  of  the 
judges  upon  the  following  case:  — 

Mr.  wSmith  had  some  time  before  purchased  this  house  with  an  inten- 
tion to  reside  in  it,  and  had  moved  some  of  his  effects  to  the  value  of 
about  ten  pounds,  into  the  house  ;  but  at  the  time  the  offence  was  sup- 
posed to  have  been  committed,  it  was  under  the  care  of  a  carpenter, 
for  the  purpose  of  being  repaired  ;  and  Mr.  Smith  had  not  himself 
entered  into  possession  of  an}'  part  of  it,  nor  did  an}*  part  of  his 
famil}',  or  any  person  whatever  sleep  therein.  The  prisoners  broke  and 
entered  this  house  in  the  night-time,  with  an  intention  to  steal ;  but 
whether  it  can  in  construction  of  law  be  considered  the  dwelling-house 
of  pjdward  Smith  the}'^  submitted,  &c. 

This  case  was  made  upon  the  objection  of  Mr.  Uowarth,  the  pris- 
oner's Counsel ;  and  a  copy  of  it  was  delivered  to  each  of  the  judges 
named  in  the  margin.^ 

1  Ace.  Fan's  Case,  Kel.  43  ;  Com.  v.  Lowrey,  158  Mass.  18,  32  N.  E.  940;  Johnston 
V.  Com.,  85  Pa.  54. —Ed. 

'^  Lord  Mansfield,  De  Gret,  C.  J.,  Skinner,  C.  B.,  Blackstone,  Ashhurst, 
Nares.  Gould,  Willes,  JJ.,  Perryn.  Hoth>»m.  Eyre.  BB 


SECT.  I.]  BEX  V.   DA  VIES.  821 

The  Judges  in  Easter  Term,  1778,  were  of  opinion,  That  a  house  so 
situated  could  not  be  considered  as  a  dwelling-house,  it  being  com- 
pletely uninhabited  ;  and  therefore  there  could  be  no  burglary. 

The  judgment  against  the  prisoners  was  accordingly  arrested. 


JOHNSON'S  CASE. 
Crowx  Case  Reserved.     1786. 

[Hepurted  2  East  P.  C.  488.] 

Though  if  a  thief  enter  a  dwelling-house  in  the  night-time  through 
tlie  outer  door  being  left  open,  or   by  an  open  window;  yet  if  when 
within  the  house  he  turn  the  key  of  or  unlatch  a  chamber-door  with 
intent  to  commit  felony  this  is  burglar}' :  and  so  it  was  adjudged  on  a 
special    verdict   at   Newgate,   1672.     The    same   was   lately   ruled   in 
Johnson's  Case  b}'  all  the  judges  ;    where  the   prisoner  entered  at  a  )  j^ 
back  door  of  the  house  of  William  Hughes  at  Newington  in  Surrey,    •  / 
which  had  been  left  open  by  the  family  ;  and  afterwards  broke  open  an    , 
inner  door,  and  stole  goods  out  of  the  room;  and  then  unbolted  thev 
street  door  on  the  inside  and  went  out. 


/ 


REX  V.  DAVIES. 
Crown  Case  Reserved.     1800. 

[Reported   Leach    (4th  ed.),  876.] 

At  the  Old  Bailey  in  June  Session,  1800,  John  Davies  was  indicted 
before  Mr.  Baron  Chambre,  present  Mr.  Justice  Grose  and  the 
Recorder,  for  stealing  a  quantity  of  pans,  kettles,  candlesticks, 
&c.,  above  the  value  of  40s.,  the  property  of  Thomas  Pearce  in  his 
dwelling-house. 

The  larcen\-  was  clearly  proved,  but  it  appeared  that  Mr.  Pearce  was 
a  brewer  in  considerable  business  living  in  Milbank  Street,  and  owner 
of  the  "  Star  and  Garter"  public  house  in  Palace-yard,  in  which  house 
the  larceny  was  committed.  The  house  was  at  this  time  shut  up.  and 
in  the  day-time  totally  uninhabited  ;  but  Mr.  Pearce's  man  was  put  to 
sleep  in  it  at  night  for  the  protection  of  the  goods  that  were  in  the 
house,  until  some  other  publican  should  take  possession  of  it.  It  had 
remained  in  this  state  about  six  weeks  previous  to  the  robbery,  during 
which  time  it  had  been  let  to  a  publican  who  had  not  taken  possession 
of  it.  There  were  at  this  time  in  the  house  sixteen  or  seventeen  beds, 
and  a  variety  of  chairs,  tables,  and  other  articles  of  furniture,  which 


822  COMMONWEALTH    V.    STEWARD.  [CHAP.  XII. 

Mr.  Pearce  had  purchased  of  the  former  tenant,  with  a  view  to  accom- 
modate the  person  to  wljom  he  might  let  it,  but  with  no  intention  of 
residing  in  the  house  himself,  either  personally  or  bj-  means  of  any  of 
his  servants. 

The  counsel  for  the  prisoner  submitted  to  the  court  that  this  house 
could  not  be  considered  as  the  dwelling-house  of  Pearce,  and  that 
therefore  the  prisoner  ought  to  be  acquitted  of  the  capital  part  of  the 
offence,  and  cited  the  cases  stated  in  the  margin.^  The  case,  however, 
was  left  with  the  jury,  and  they  found  the  prisoner  guilty-  of  the  whole 
charge,  but  the  point  was  saved  for  the  consideration  of  the  judges. 

The  Judges,  in  Trinit}'  Term,  1800,  were  of  opinion  that  as  it 
clearly  appeared  by  the  evidence  that  Mr.  Pearce  had  no  intention 
^hateyer  to  reside  in  this  house  either  b^'  himself  or  his  servants,  it 
could  not  in  contemplation  of  law  be  considered  as  his  dwelling-house, 
and  that  not  being  such  a  dwelling-house  wherein  burglar}'  might  be 
committed,  the  capital  part  of  the  charge  under  12  Ann.  c.  7,  was 
done  away. 

The  prisoner  accordingly  received  his  Majesty's  pardon  on  condition 
of  transportation. 


COMMONWEALTH   v.   STEWARD. 
Supreme  Judicial  Court  of  Massachusetts.     1789 

[Reported  7  Dime's  Abr.  L36.] 

Steward  was  indicted  for  burglary  in  the  house  of  John  Fisk.     The 
court  held  that  it  is  a  burglarious  breaking  to  open  a  door  when  latched 
and    shut,    or   to    push   up   a    window   when    shut  down,  though  not 
fastened  ;  these  being  in  their  shut  position.     But  if  a  window  be  a 
-jKttle  pushed  up,  or  a  door  a  little  opened,  &c.,  so  that  one  passing  by 
jaaay  see  the  owner  has  not  properl}-  shut  his  house,  it  is  not  a  l)urglari- 
J3US  breaking  to  enter,  though  a  further  pushing  up  of  the  window  or 
opening  of  the  door  be  necessar}'  for  the  person  to  enter ;   but  that  it  is 
not  customar}'  for  men,  nor  necessary  always,  to  have  all  the  glass  of 
their  windows  whole,  or  the  joints  of  their  doors,  windows,  &c.,  exact.^ 
Attorney- Goieral^  for  the  State. 
Bradbury ^  for  the  defendant. 

1  Harris's  Case,  Leach,  701 ;  Thompson's  Case,  Leach,  771 ;  Fuller's  Case,  Leach, 
186  n. 
s  Ace.  Kex  V.  March,  1  Moo.  C.  C.  178.     See  Kex  v.  Lewis,  2  C.  &  P.  628.  — Ed. 


SECT.  I.]  COMMONWEALTH    V.    STEPHENSON.  8'23 


COMMONWEALTH   v.    STEPHENSON.  --/' 

Supreme  Judicial  Court  of  Massachusetts.     1829. 

[Rrported  8  Pickering,  354. J 

Indictment  for  buighiry.  The  evidence  as  to  breaking  was,  tbat  in 
the  evening  of  May  22  the  witness  fastened  the  outer  door  of  the  dwell- -x 
ing-house  by  turning  a  button  down  upon  the  latch,  and  that  about  day-  ~ 
break  in  the  morning  he  found  the  door  open,  and  also  that  the  network 
of  the  buttery  window  had  been  cut  away  and  torn  down.  Tlie  netting 
was  made  of  double  twine,  and  was  fastened  by  nailing  it  on  each  side, 
and  at  the  top  and  bottom  of  the  window,  for  the  purpose  of  letting  m 
the  air  and  keeping  out  cats  and  other  small  animals.  Within  the  net- 
work there  was  a  glass  window,  which  had  not  been  shut.  Putnam,  J., 
instructed  the  jury  that  if  the  defendants  broke,  cut,  or  tore  away  the 
net  so  fastened,  it  was  in  law  a  breaking  of  the  dwelling-house.  The 
defendants,  being  found  guilt}-,  moved  for  a  new  trial  because  the  fore- 
going instruction  was  wrong. 

Bates  and  G.  Bliss,  Junior,  for  the  defendants.  Entering  by  an 
open  window  will  not  sustain  an  indictment  for  burglary  :   2  Russ.  901  ; 

1  Hawk.  P.  C.  c.  38,  §§  4,  5  ;  4  Bl.  Com.  226;   Callon's  Case,  cited  in 

2  Russ.  903  ;  and  the  circumstance  that  a  netting  was  stretched  across 
the  window  in  the  present  case  is  immaterial,  as  this  netting  was  put 
up  only  as  a  security  against  the  entry  of  small  animals.  Tiie  window 
was  the  natural  protection  against  an  entrv  b}'  man.  To  constitute  a 
breaking,  the  thing  broken  must  be  a  [)art  of  the  house.  1  Hawk.  P.  C. 
c.  38,  §§4,5;  Fo,ster,  108  ;  1  Hale,  552  ;  2  Stark.  Ev.  320.  This  net- 
ting was  not  even  a  fixture.  Beck  v.  Rebow,  1  P.  Wms.  94  ;  Gale  v. 
Ward,  14  Mass.  356;  Whiting  v.  Brastow,  4  Pick.  310;  Com.  v. 
Trimmer,  1  ]\Iass.  476.^ 

.Dari.s  (Solicitor-General)  cited  3  Chit.  Ci-im.  Law,  1098  ;  1  Hale, 
552  ;  East  P.  C.  487;  4  Bl.  Com.  226. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  The  question  in 
this  case  is,  whether  there  was  a  breaking  or  not.  The  lifting  a  latch 
and  opening  the  door,  though  not  bolted  or  locked  ;  the  shoving  up  a 
window,  though  not  fastened  ;  the  getting  down  a  chimney,  and  vari- 
ous other  acts  done  to  effect  an  entry,  are  held  to  be  a  breaking.  The 
offence  consists  in  violating  the  common  securit}'  of  a  dwelling-house 
in  the  night-time,  for  the  purpose  of  committing  a  felony.  It  makes  no 
difference  whether  the  door  is  barred  and  bolted,  or  the  window  secured, 
or  not;  it  is  enough  that  the  house  is  secured  in  the  ordinar}-  way  ;  so 
that  by  the  carelessness  of  the  owner  in  leaving  the  door  or  window 
open,  the  party  accused  of  burglary  be  not  tempted  to  enter.  Shutting 
the  window  blinds  and  leaving  the  windows  open  for  air  is  a  common 

1  Part  of  the  argument  is  omitted. 


824  MASON   V.   PEOPLE.  [CHAP.  XII. 

mode  of  closing  a  house  in  the  warm  season  ;  if  the  blinds  are  forced, 
it  is  a  breaking. 

The  objection  is,  that  the  lattice-work  of  the  dairy  window  was  of 
twine  only.  Suppose  it  were  of  wire  or  thin  slats  of  wood,  would  there 
be  an}'  difference?  This  network  was  nailed  down  on  all  sides  ;  it  was 
torn  away  by  the  defendants,  and  they  entered  the  breach.  This  is 
quite  sufficient  to  constitute  a  burglarious  breaking  and  entry. 

Motion  for  a  new  trial  overruled. 


MASON  V.  PEOPLE. 

Court  of  Appeals  of  New  York.      1863. 

[Reported  26  New  York.  200.] 

Error  to  the  Supreme  Court.  The  plaintiff  in  error  was  indicted  in 
the  New  York  General  Sessions.  The  first  count  charged  him  with 
feloniously  and  burglariousl}'  breaking  and  entering,  in  the  daytime, 
the  dwelling-house  of  Christopher  Thomas,  "  with  intent  to  commit 
some  crime  therein,"  but  not  specifying  what  crime.  The  second  count 
charged  a  larcen}',  in  the  dwelling-house  before-mentioned,  of  a  gold 
ring,  the  property  of  Minna  Thomas.  The  evidence  was  that  Thomas 
and  his  wife  Minna  occupied  three  rooms  in  what  is  known  as  a  tene- 
ment house,  for  which  the\'  paid  rent  monthlj-.  Three  other  families 
occupied  different  apartments  of  the  same  house,  one  of  these  families 
having  rooms  on  the  same  floor  with  Thomas.  There  was  one  common 
door  of  entrance  into  the  house,  which  opened  from  the  street  into  the 
first  floor  or  stor}',  through  which  all  the  tenants  passed  to  their  respec- 
tive apartments.  When  the  offence  was  committed  the  front  door  was 
open,  the  prisoner  breaking  only  the  door  of  Mrs.  Thomas'  room, 
which  she  had  left  locked.  The  prisoner's  counsel  asked  the  court 
to  charge  that  breaking  an  inner  door  in  the  daytime  with  intent  to 
steal  is  not  a  burglary.  He  maintained  that  the  outer  door  of  the 
house  was  the  outer  door  of  every  tenant  living  within  ;  that  the  crim- 
inal breaking  of  that  door  would  have  been  a  burglar}'  of  the  dwelling- 
house  of  the  tenant  whose  property  the  offender  intended  to  steal ;  and 
that,  as  a  consequence,  the  breaking  of  the  inner  door  was  not,  because 
a  double  burglar}'  could  not  be  committed  by  breaking  first  the  street 
door  and  then  the  inner.  The  court  refused  to  charge  as  requested, 
and  the  prisoner  took  an  exception.  He  was  convicted  of  burglary  in 
the  third  degree,  and  the  judgment  having  been  affirmed  by  the  Supreme 
Court  in  the  first  district,  he  appealed  to  this  court. 

S.  H.  Stewart,  for  the  plaintiff  in  error. 

A.  Oakey  Hall.,  for  the  People. 


SECT.  I.]  QUINN  V.    PEOPLE.  825 

Emott,  J.^  As  to  the  objection  taken  at  the  trial  tliat  burglary  could 
not  be  committed  by  breaking  and  entering  apartments  in  what  is 
known  in  cities  as  a  tenement  honse,  a  building  occupied  separately  bv 
several  families,  each  having  distinct  apartments  opening  into  a  com- 
mon hall,  and  thus  communicating  with  the  street,  it  has,  in  mv  jud<>- 
ment,  no  foundation.  Any  and  every  settled  habitation  of  a  man  and  his 
famil}'  is  his  house  or  his  mansion,  in  respect  to  its  burglarious  eiitrv. 
It  was  so  held  before  Lord  Hale's  time  as  to  chambers  in  colleges  and 
inns  of  court,  and  even  as  to  a  chamber  hired  by  A.  in  the  house  of  B., 
for  lodging  for  a  specified  time.  Hale  PI.  Cor.,  I.,  p.  556.  Serjeant 
Hawkins  (Cr.  Law,  vol.  i.  p.  163)  gives  the  same  rule  as  to  tenement 
or  lodging  houses,  except  that  he  seems  to  suppose  that  a  difference 
might  arise  when  the  owner  of  the  house  himself  lived  in  it.  But  such 
an  exception  would  only  lie  where  the  other  inmates  were  lodgers  with 
Jhe^  owner,  and  not  proprietors  of  distinct  tenements  separately  hired 
and  occupied  for  a  longer  or  shorter  time,  with  access  either  separately 
or  jointly  to  the  street.  AYherever  a  building  is  severed  by  lease  into 
distinct  habitations,  each  becomes  the  mansion  or  dwelling-house  of 
the  lessee  thereof,  and  is  entitled  to  all  the  privileges  of  an  individual 
dwelling.  The  case  of  the  People  v.  Bush,  3  Park.  Cr.  R.  556,  was 
precisely  like  the  one  at  bar,  and  it  was  there  held  b}-  three  judges  of 
the  Supreme  Court,  of  whom  the  one  pronouncing  the  opinion  was  a 
learned  and  experienced  criminal  lawj'er,  that  a  room  or  rooms  in  a 
tenement  house,  rented  to  separate  families  with  a  door  and  entry  com- 
mon to  all,  constituted  each  the  dwelling-house  of  the  particular  occu- 
pant in  the  sense  of  the  law.  Such  we  understand  to  be  the  well-settled 
rule. 

The  judgment  of  the  Supreme  Court  affirming  that  of  the  Court  of 
Sessions  was  right,  and  must  be  affirmed  in  this  court. 

Judgment  affirmed. 


'\M 


j     "  QUINN   V.    PEOPLE. 
X^ouRT  OF  Appeals  of  New  York.     1878. 

[Reported  71  New  York,  56L] 

FoLGER,  J.^  The  plaintiff  in  error  was  Indicted  of  the  crime  of  burg- 
lary in  the  first  degree,  under  the  section  of  the  Revised  Statutes 
defining  that  crime.  2  R.  S.  p.  668,  §  10,  subd.  1.  The  crime,  as 
there  defined,  consists  in  breaking  into,  and  entering  in  the  night-time, 
in  the  manner  there  specified,  the  dwelling-house  of  another,  in  which 
there  is  at  the  time  some  human  being,  with  the  intent  to  commit  some 
crime  therein.   The  evidence  given  upon  the  trial  showed  clearly  enough 

1  Part  of  the  opinion  is  omitted. 


-f^ 


v 


^ 


326  QUINN   V.    PEOPLE.  [CHAP.  XII. 

the  breaking  and  entering,  and  the  criminal  intent.  The  questions 
mooted  in  this  court  are,  whetlier  it  is  legally'  proper,  in  an  indictment 
for  burglary  of  a  dwelling-house,  to  aver  the  ownership  of  the  building 
in  a  partnership,  and  whether  the  proof  showed  that  the  room  entered 
was  a  dwelling-house  within  the  intent  of  the  statute.  As  to  the  first 
question  :  The  indictment  averred  the  breaking  and  entering  into  the 
dwelling-house  of  Frederick  Kohnsen  and  John  F.  Lubkin,  being  co- 
partners in  business  under  the  firm-name  and  style  of  Kohnsen  & 
Lubkin.  The  authorities  are  numerous  enough  and  clear,  that  the 
ownership  of  the  dwelling-house  may  be  laid  in  the  indictment  to  be  in 
the  members  of  a  copartnership,  when  the  facts  of  the  case  warrant  it. 
In  Rex  V.  Atbea,  R.  &  M.  C.  C  R.  329,  the  indictment  averred  the 
stealing  in  the  dwelling-house  of  Hailing  and  others.  It  appeared  that 
Hailing,  Pierce  &  Stone  carried  on  business  on  the  premises  in  which 
the  offence  was  committed.  Pierce  lived  in  the  house,  which  was  the 
joint  property  of  the  firm.  The  other  partners  I'esided  elsewhere.  It 
was  held,  upon  a  case  reserved,  that  the  dwelling-house  was  properly 
laid  as  that  of  all  the  partners.  See,  also,  Rex  v.  Stockton  & 
Edwards,  2  Taunt.  339  ;  2  Leach,  1015  ;  s.  c.  sub  iiorn.  Rex  v.  Stock 
et  al.,  Russ.  &  Ry.,  185  ;  Rex  v.  Hawkins,  Foster's  Cr.  Law,  38  ;  Rex 
V.  Jenkins,  Russ.  &  R}'.  244  ;  Saxton's  Case,  2  Harr.  533. 

The  facts  of  the  case  in  hand  are  meagrel}'  presented  upon  the  error- 
book,  but  we  gather  from  it,  and  from  the  concessions  made  upon  the 
points  and  on  the  oral  argument,  that  Kohnsen  and  Lubkin,  tlie  per- 
sons named  in  the  indictment,  were  copartners  in  trade  ;  and,  as  such, 
held  and  occupied  the  buildings,  into  one  room  of  which  the  burglarious 
entry  was  made  ;  that  the  lower  or  first  stories  of  the  buildings  were 
used  for  the  purposes  of  their  business,  and  opened  into  each  other  ; 
that  in  the  upper  rooms  one  only  of  the  partners  and  some  other  per- 
sons lived,  and  were  present  on  the  night  of  the  burglary.  This  state 
of  facts  is  in  accord  with  those  presented  in  the  cases  above  cited.  We 
are  of  opinion  that  the  first  question  presented  must  be  resolved  against 
the  plaintitiin  error.  The  ownership  of  the  buildings  was  properly  laid 
by  the  indictment  in  Kohnsen  &  Lubkin.  The  ownersl)ip  remained  with 
them  ;  the  actual  possession  of  the  portions  of  the  buildings  used  for 
business  was  in  them,  and  the  possession  of  part  of  tiie  portion  of  the 
buildings  used  to  live  in  was  in  them,  by  the  actual  possession  and 
occupation  of  that  part  by  Kohnsen.  They  had  not  given  such  an 
interest  to  other  persons  in  the  whole  or  in  parts  of  the  buildings  as  to 
constitute  an  ownership  in  such  other  persons.  2  East,  P.  C.  C.  15, 
§  18,  p.  502.  The  cases  are  somewhat  in  conflict  upon  this  point,  it 
is  true,  and  are  not  easily  reconciled  or  distinguished  ;  see  Rex  v. 
Margetts,  et  al,  2  Leach,  930  ;  but  it  is  plain  that  here  the  partners,  as 
such,  had  the  ultimate  control  and  right  of  possession  of  the  whole 
buildings,  and  the  actual  possession  of  the  shop  entered,  and  of  the 
sleeping-room  above  it,  thus  bringing  the  case  within  several  decisions. 

As  to  the  second  question  :   In  addition  to  the  facts  already  stated, 


SECT.  I.J  QUINN    V.   PEOPLE.  827 

it  is  needed  onl^'  to  note  that  there  was  an  internal  communication 
between  the  two  stores,  in  the  lower  stories  of  the  buildings,  but  none 
between  thera  and  the  upper  rooms,  in  wliich  one  of  the  partners 
and  other  persons  lived.  The  room  into  winch  tlie  plaintiff  in  error 
broke  was  used  for  business  purposes  only,  but  it  was  within  the  same 
four  outer  walls,  aiid  under  the  same  roof  as  the  other  rooms  of  the 
buildings.  To  pass  from  the  rooms  used  for  business  puqwses  to  the 
rooms  used  for  living  in,  it  was  necessary  to  go  out  of  doors  into  a 
3'ard  fenced  in,  and  from,  thence  up  stairs.  The  unlawful  entering  of 
the  plainti.f  in  error  was  into  one  of  the  lower  rooms  used  for  trade, 
and  into  that  only.  The  point  made  is,  that  as  there  was  no  internal 
communication  from  that  room  to  the  rooms  used  for  dwellings,  and  as 
that  room  was  not  necessary  for  tlie  dwelling-rooms,  there  was  not  a 
breaking  into  a  dwelling-house,  and  hence  the  act  was  not  burglary  in 
the  first  degree  as  defined  In' the  Revised  Statutes  as  cited  above.  In 
considering  this  point,  1  will  first  say  that  the  definition  of  the  crime  of 
burglary  in  the  first  degree,  given  by  the  Revised  Statutes,  does  not, 
so  far  as  this  question  is  concerned,  materialh*  differ  from  the  defini- 
tion of  the  crime  of  buiglar\'  as  given  at  common  law,  to  wit,  "  a 
breaking  and  entering  the  mansion-house  of  another  in  the  night,  with 
intent  to  commit  some  felony  within  the  same."  ...  2  Russ.  on  Cr. 
p.  1,  §  *  785.  It  will,  therefore,  throw  light  upon  this  question  to 
ascertain  what  buildings  or  rooms  were,  at  common  law,  held  to  be 
dwelling-houses  or  a  part  thereof,  so  as  to  be  the  subject  of  burglarj-. 
For,  so  far  as  the  Revised  Statutes  as  already  cited  are  concerned, 
what  was  a  dwelling-house  or  a  part  thereof  at  common  law,  must  also 
be  one  under  those  statutes.  Now,  at  common  law,  before  the  adop- 
tion of  the  Revised  Statutes,  it  had  been  held  that  it  was  not  needful 
that  there  should  be  an  internal  communication  between  the  room  or 
building  in  which  the  owner  dwelt,  if  the  two  rooms  or  buildings  were 
in  the  same  inclosure,  and  were  built  close  to  and  adjoining  each 
otKer.  Caseof  Gibson,  Mutton  &  Wiggs,  Leach's  Cr.  Cases,  320  (case 
165),  recognized  in  The  People  v.  Parker,  4  Johns.  423.  In  the  case 
from  Leach,  there  was  a  shop  built  close  to  a  dwelling-house  in  which 
the  prosecutor  resided.  There  was  no  internal  communication  between 
them.  No  person  slept  in  the  shop.  The  only  door  to  it  was  in  the 
court-yard  before  the  house  and  shop,  which  yard  was  inclosed  bv  a 
brick  wall,  including  them  within  it,  with  a  gate  in  the  wall  serving 
for  ingress  to  thera.  The  breaking  and  entering  was  into  the  shop. 
Objection  was  taken  that  it  could  not  be  considered  the  dwelling-house 
of  the  prosecutor,  and  the  case  was  reserved  for  the  consideration  of 
the  twelve  judges.  The}'  were  all  of  the  opinion  that  the  shop  was  to 
be  considered  a  part  of  the  dwelling-house,  being  within  the  same 
building  and  the  same  roof,  though  there  was  onh'  one  door  to  the 
shop,  that  from  the  outside,  and  that  the  prisoners  had  been  duly  con- 
victed of  burglary  in  a  dwelling-house.  The  case  in  Johnson's  Reports, 
supra,  is  also  significant,  from  the  facts  relied  upon  there  to  dLstin- 


828  QUINN   V.    PEOPLE.  [CHAP.  XII. 

guish  it  from  the  case  in  Leach,  supra.  Those  facts  were  that  the  shop 
entered,  in  which  no  One  slept,  though  on  the  same  lot  with  the  dwell- 
ing-house, was  twenty  feet  from  it,  not  inclosed  b3'  the  same  fence,  nor 
connected  by  a  fence,  and  both  open  to  a  street.  The  court  said  that 
they  were  not  within  the  same  curtilage,  as  there  was  no  fence  or  yard 
inclosing  both  so  as  to  bring  them  within  one  inclosure,  therefore,  the 
case  was  within  that  of  The  King  v.  Garland,  1  Leach  Cr.  Cas.  130 
(or  171),  case  77.  It  has  been  urged,  in  the  consideration  of  the  case 
in  hand,  that  though  the  common  law  did  go  farther  than  the  cases 
above  cited,  and  did  deem  all  out-houses,  when  the\'  were  within  the 
same  inclosure  as  the  dwelling-house,  a  part  of  it,  yet  that  they  must, 
to  be  so  held,  be  buildings  or  rooms  the  use  of  which  subserved  a 
domestic  purpose,  and  were  thus  essential  or  convenient  for  the  enjoy- 
ment of  the  dwelling-house  as  such.  Gibson's  case,  supra,  would 
alone  dispose  of  that.  The  building  there  entered  was  not  only  of 
itself  a  shop  for  trade,  but  it  was  m  the  use  and  occupation  of  a  per- 
son other  than  the  owner  of  the  dwelling-house.  The  books  have  many 
cases  to  the  same  end.  Rex  r.  Gibbons  &  Kew  Russ.  &  R}'.  442, 
the  case  of  a  shop.  Robertson's  case,  4  City  Hall  Rec.  63,  also  a 
shop  with  no  internal  communication  with  the  dwelling-house.  Rex  v. 
Stock  et  al.,  Russ.  &  Ry.  185,  a  counting-room  of  bankers,  ^x  parte 
Vincent,  26  Ala.  145,  one  room  in  a  house  used  as  a  wareroom  for 
goods.  Rex  V.  Witt,  Ry.  &  M.  248,  an  office  for  business,  below 
lodging  rooms.  Indeed,  the  essence  of  the  crime  of  burglary  at  com- 
mon law  is  the  midnight  terror  excited,  and  the  liabilitj-  created  b}^  it 
of  danger  to  human  life,  growing  out  of  the  attempt  to  defend  property 
from  depredation.  It  is  plain  that  both  of  these  may  arise,  when  the 
place  entered  is  in  close  contiguity  with  the  place  of  the  owner's  repose, 
though  the  former  has  no  relation  to  the  latter  b}'  reason  of  domestic 
use  or  adaptation.  Besides,  the  cases  have  disregarded  the  fact  of 
domestic  use,  necessity,  or  convenience,  and  have  found  the  criterion  in 
the  physical  or  legal  severance  of  the  two  departments  or  buildings. 
Rex  V.  Jenkins,  Russ.  &  Ry.  244  ;  Rex  v.  Westwood,  id.  495  ;  where 
the  separation  of  the  buildings  was  by  a  narrow  way,  both  of  them 
being  used  for  the  same  family  domestic  purposes.  It  is  not  to  be 
denied  that  there  are  some  cases  which  do  put  just  the  difference 
above  noted,  as  now  urged  for  the  plaintiff  in  error.  State  ik  Lang 
ford,  1  Dev.  253;  State  v.  Jenkins,  5  Jones,  430;  State  v.  Bryawt 
Ginns,  1  Nott  &  McCord,  583.  Though,  in  the  case  last  cited,  it  is 
conceded  that  if  a  store  is  entered,  which  is  a  part  of  a  dwelling-house, 
by  being  under  tiie  same  roof,  the  crime  is  committed  ;  and  it  must  be. 
so,  if  it  is  the  circumstance  of  midnight  terror  in  breaking  open_a.^ 
dwelling  house,  which  is  a  chief  ingredient  of  the  crime  of  burglary ; ' 
and  it  is  for  that  reason  that  barns  and  other  out-houses,  if  in  proxim- 
ity to  the  mansion-house,  are  deemed  quasi  dwelling-houses,  and  enti- 
tled to  the  same  protection.  State  v.  Brooks,  4  Conn.  446-449.  Coke 
(3  Inst.  64)  is  cited  to  show  that  only  those  buildings  or  places,  which 


SECT.  I.]  QUINN    V.    I'EOI'LE.  829 

in  their  nature  and  recognized  use  are  intended  for  the  domestic  com- 
fort and  convenience  of  the  owner,  may  be  the  subject  of  burglary  at 
common  law  ;  but  in  the  same  book  and  at  the  same  page  the  author 
also  says  :  "  But  a  shop  wherein  any  person  doth  converse  "  —  that  is, 
be  employed  or  engaged  with  ;  Richardson's  'Die,  in  voce  —  *' being  a 
parcell  of  a  mansion-house,  or  not  parcell,  is  taken  for  a  mansion- 
house."  So  Hale  is  cited  (vol.  1,  P.  C.  558) ;  and  it  is  there  said  that, 
"  to  this  day  it  is  holden  no  burglary  to  break  open  such  a  shop."  But 
what  does  he  mean  b}'  that  phrase  ?  That  appears  from  the  authority 
which  he  cites  (Hutton's  Reps.  33)  ;  where  it  was  held  no  burglary  to 
break  and  enter  a  shop,  held  by  one  as  a  tenant  in  the  house  of 
another,  in  which  the  tenant  worked  b}'  day,  but  neither  he  nor  the 
owner  slept  by  night.  And  the  reason  given  is  the  one  above  noticed 
and  often  recognized  by  the  cases,  that  by  the  leasing  there  was  a 
severance  in  law  of  the  shop  from  the  dwelling-house.  But  Hale  also 
(vol.  1,  P.  C,  p.  557)  cites  as  law  the  passage  from  The  Institutes 
above  quoted.  Other  citations  from  text  books  are  made  by  the  plain- 
tiff in  error  ;  they  will  be  found  to  the  same  effect,  and  subject  to  the 
same  distinction  as  those  from  Coke  and  Hale.  And  see  Rex  v.  Gib- 
bons et  id.,  supra  ;  Rex  i'.  Richard  Carroll,  1  Leach  Cr.  Cas.  272,  case 
115.  That  there  must  be  a  dwelling-house,  to  which  the  shop,  room, 
or  other  place  entered  belongs  as  a  part,  admits  of  no  doubt.  To  this 
effect,  and  no  more,  are  the  cases  cited  by  the  plaintiff  in  error,  of 
Rex  V.  Harris,  2  Leach,  701  ;  Rex  v.  Davies.  alias  Silk,  id.  876,  and 
the  like.  There  were  cases  which  went  further  than  anything  I  have 
asserted.  They  did  not  exact  that  the  building  entered  should  be  close 
to  or  adjoining  the  dwelling-house,  but  held  the  crime  committed,  if 
the  building  entered  was  within  the  same  fence  or  inclosure  as  the  build- 
ing slept  in.  And  the  dwelling-house  in  which  burglary  might  be  com- 
mitted was  held  formerly  to  include  out-houses,  —  such  as  warehouses, 
barns,  stables,  cow-houses,  dair3--houses,  — though  not  under  the  same 
roof  or  joining  contiguous  to  the  house,  provided  they  were  parcel 
thereof.  1  Russ.  on  Cr.  *  799,  and  authorities  cited.  An}'  out-house 
within  the  curtilage,  or  same  common  fence  with  the  dwelling-house 
itself,  was  considered  to  be  parcel  of  it,  on  the  ground  that  the  capital 
house  protected  and  privileged  all  its  branches  and  appurtenants,  if 
within  the  curtilage  or  home-stall.  State  v.  Twitty,  1  Hayw.  (N.  C.) 
102  ;  State  v.  Wilson,  id.  242  ;  see  also  State  v.  Ginns,  1  Nott  & 
McCord,  583,  supra,  where  this  is  conceded  to  be  the  common  law. 
See  note  a  to  Garland's  case,  si/pra.. 

It  seems  clear,  that  at  common  law  the  shop  which  the  plaintiff  in 
error  broke  into  would  have  been  held  a  part  of  a  dwelling-house. 

The  judgment  brought  up  for  review  should  be  affirmed. 

It  may  ward  off  misapprehension  if  it  is  said,  that  if  different  stores 
ni  a  large  building,  some  parts  of  which  are  used  for  sleeping  apart- 
ments, are  rented  to  different  persons  for  purposes  of  trade  or  com- 
merce, or  mechanical  pursuit,  or  manufacturing,  another  rule  comes  m 


830  WALKEK    V.    STATE.  [CHAP.  XII. 

B'or  illustration,  let  there  be  mentioned  the  Aster  House  in  New  York 
city.  The  rule  is,  that  a  part  of  a  dwelling-house  may  be  so  severed 
from  the  rest  of  it,  by  being  let  to  a  tenant,  as  to  be  no  longer  a  place 
in  which  burglar}'  in  the  first  degree  can  be  committed  ;  if  there  be  no 
internal  communication,  and  the  tenant  does  not  sleep  in  it.  Then  it 
is  not  parcel  of  the  dwelling-house  of  the  owner,  for  he  has  no  occupa- 
tion or  possession  of  it ;  nor  is  it  a  dwelling-house  of  the  tenant,  for  he 
does  not  lodge  there.  1  Hale  P.  C.  557,  558  ;  Kel.  83,  84  ;  4  Black. 
Com.  225,  226  ;  East  P.  C.  c.  15,  §  20,  p.  507. 

Allen,  Miller,  and  Earl,  JJ.,  concur  ,*  Rapallo  and  Andrews,  JJ., 
dissent;  Church,  C.  J.,  not  voting.  Judgment  affirmed. 


WALKER   V.    STATE. 
Supreme  Court  of  Alabama.     1879. 

[Reported  63  Ala.  49.] 

Brickell,  C.  J.  The  statute  (Code  of  1876,  §  4343)  provides,  that 
*'  any  person  who,  either  in  the  night  or  day  time,  with  intent  to  steal^ 
or  to  commit  a  felon}',  breaks  into  and  enters  a  dwelling-house,  or  an}' 
building,  structure,  or  inclosure  within  the  curtilage  of  a  dwelling- 
house,  though  not  forming  a  part  thereof,  or  into  any  shop,  store, 
warehouse  or  other  building,  structure,  or  inclosure  in  which  any  goods, 
merchandise  or  other  valuable  thing  is  kept  for  use,  sale,  or  deposit, 
provided  such  structure,  other  than  a  shop,  store,  warehouse,  or  build- 
ing, is  specially  constructed  or  made  to  keep  such  goods,  merchandise, 
or  other  valuable  thing,  is  guilty  of  burglary,"  etc. 

The  defendant  was  indicted  for  breaking  into  and  entering  "  a  corn- 
crib  of  Noadiah  AYoodruff  and  Robert  R.  Peeples,  a  building  in  which 
corn,  a  thing  of  value,  was  at  the  time  kept  for  use,  sale,  or  deposit, 
with  intent  to  steal,"  etc.  He  was  convicted  :  and  the  case  is  now 
presented  on  exceptions  taken  to  instructions  given,  and  the  refusal  of 
instructions  requested,  as  to  what  facts  will  constitute  a  breaking  into 
and  entry,  material  constituents  of  the  offence  charged  in  the  indict- 
ment. The  facts  on  which  the  instructions  were  founded  are  :  that  in 
the  crib  was  a  quantity  of  shelled  corn,  piled  on  the  floor  ;  in  April  or 
May,  1878,  the  crib  had  been  broken  into,  and  corn  taken  therefrom, 
without  the  consent  of  the  owners,  who  had  the  crib  watched  ;  and 
thereafter  the  defendant  was  caught  under  it,  and  on  coming  out,  vol- 
untarily confessed  that  about  three  weeks  before  he  had  taken  a  large 
auger,  and  going  under  the  crib,  had  bored  a  hole  through  the  floor, 
from  which  the  corn,  being  shelled,  ran  into  a  sack  he  held  under  it;, 
that  he  then  got  about  three  pecks  of  corn,  and  with  a  cob  closed  the 
hole.     On  these  facts  the  City  Court  was  of  opinion,  and  so  instructed 


SECT.  I.]  WALKEE   V.   STATE.  831 

the  jury,  that  there  was  such  a  breaking  and  entry  of  the  crib,  as  would 
constitute  the  offence,  and  refused  instructions  requested  asserting  the 
converse  of  tlie  proposition. 

The  material  clianges  the  statute  has  wrought  as  to  tlie  oflence  of 
burglary,  as  known  and  defined  at  common  hiw,  are  as  to  the  time  and 
place  of  its  commission.  An  intent  to  steal  or  to  commit  a  felony  are 
the  words  of  the  statute,  while  an  intent  to  commit  a  felony  were  the 
words  of  the  common  law.  Under  our  statutes,  a  felony  is  defined  as 
a  public  offence,  punished  b^'  death,  or  by  imprisonment  in  the  peniten-  ' 
tiar^' ;  while  public  offences  otherwise  punishable  are  misdemeanors. 
The  larceny  of  other  than  personal  property  particularly  enumerated, 
and  under  special  circumstances,  the  propert}^  not  exceeding  the  value 
of  $25,  is  petit  larceny,  and  a  mere  misdemeanor.  The  intent  to  steal, 
as  an  element  of  burglary,  is  therefore  made  the  equivalent  of  an 
intent  to  commit  a  felonj-,  though  the  value  of  the  thing  intended  to  be 
stolen  ma}'  be  less  than  $25,  and  its  larceny'  a  misdemeanor. 

The  statute  employs  the  words,  "breaks  into  and  enters;"  and 
these  are  borrowed  from  the  common-law  definition  of  burglarj'.  They 
must  be  received  with  the  signification,  and  understood  in  the  sense 
given  them  at  common  law.  ''There  must,  in  general,"  says  Black- 
stone,  "be  an  actual  breaking,  not  a  mere  legal  clausum  f regit  by 
leaping  over  invisible  ideal  boundaries,  which  may  constitute  a  civil 
trespass,  but  a  substantial  and  forcible  irruption."  The  degree  of 
force  or  violence  which  may  be  used  is  not  of  importance, — it  may 
be  ver}'  slight.  The  lifting  the  latch  of  a  door  ;  the  picking  of  a  lock, 
or  opening  with  a  ke}' ;  the  removal  of  a  pane  of  glass,  and  indeed,  the 
displacement  or  unloosing  of  an}'  fastening,  which  the  owner  has  pro- 
vided as  a  security  to  the  house,  is  a  breaking —  an  actual  breaking  — 
tvithin  the  meaning  of  the  term  as  emploA'ed  in  the  definition  of  burg- 
lar}-  at  common  law,  and  as  it  is  employed  in  the  statute.  In  Hughes' 
case,  1  Leach,  C.  C,  case  178,  the  prisoner  had  bored  a  hole  with  a 
centre-bit  through  the  panel  of  the  house  door,  near  to  one  of  the  bolts 
by  which  it  was  fastened,  and  some  pieces  of  the  broken  panel  were 
found  withinside  the  threshold  of  the  door,  but  it  did  not  appear  that 
any  instrument  except  the  point  of  the  centre-bit,  or  that  an}-  part  of 
the  prisoner's  body  had  been  withinside  the  house,  or  that  the  aperture 
made  was  large  enough  to  admit  a  man's  hand.  The  court  were  of 
opinion  that  there  was  a  sufficient  breaking,  but  not  such  an  entry  as 
would  constitute  the  offence. 

The  boring  the  hole  through  the  floor  of  the  crib  was  a  sufficient 
breaking,  but  with  it  there  must  have  been  an  entry.  Proof  of  a  break- 
ing, though  it  may  be  with  an  intent  to  steal  or  the  intent  to  commit  a 
felony,  is  proof  of  one  only  of  the  facts  making  up  the  offence,  and  is  as 
insufficient  as  proof  of  an  entry  through  an  open  door  without  break- 
ing. If  the  hand  or  any  part  of  the  body  is  intruded  within  the  house 
the  entry  is  complete.  The  entry  may  also  be  completed  by  the  intru- 
sion of  a  tool  or  instrument  within  the  house,  though  no  part  of  the 


832  WALKER    V.    STATE.  [CHAP.  XII. 

body  be  introduced.  Thus,  "  if  A  breaks  the  house  of  B.  in  the  night- 
time, with  intent  to  steal  goods,  and  brealvs  the  window  and  puts  in  liis 
liand,  or  puts  in  a  hook  or  other  engine  to  reach  out  goods,  or  puts  a 
pistol  in  at  the  window,  with  an  intent  to  kill,  though  his  hand  be  not 
within  the  window,  this  is  burglary."  1  Hale,  555.  When  no  part  of 
the  body  is  introduced,  —  when  the  only  entry  is  of  a  tool  or  instrument 
introduced  by  the  force  and  agency  of  tlie  party  accused,  the  inquiry  is 
whether  the  tool  or  instrument  was  employed  solely  for  the  purpose  of 
breaking,  and  thereby  effecting  an  entry,  or  whether  it  was  emplo3ed 
not  only  to  break  and  enter,  but  also  to  aid  in  the  consummation  of  the 
criminal  intent  and  its  capacity  to  aid  in  such  consummation.  Until 
there  is  a  breaking  and  entr\'  the  offence  is  not  consummated.  The 
offence  rests  largel}'  in  intention,  and  though  there  may  be  sufficient 
evidence  of  an  attempt  to  commit  it,  which  of  itself  is  a  crime,  the 
attempt  may  be  abandoned,  —  of  it  there  may  be  repentance  before  the 
consummation  of  the  offence  intended.  The  breaking  may  be  at  one 
time  and  the  entiy  at  another.  The  breaking  may  be  complete,  and 
yet  an  entr}'  never  effected.  From  whatever  cause  an  entry  is  not 
effected,  burglary  has  not  been  committed.  When  one  instrument  is 
employed  to  break,  and  is  without  capacity  to  aid  otherwise  than  by 
opening  a  way  of  entry,  and  another  instrument  must  be  used,  or  the 
instrument  used  in  the  breaking  must  be  used  in  some  other  way  or 
manner  to  consummate  the  criminal  intent,  the  intrusion  of  the  instru- 
ment is  not  of  itself  an  entry.  But  when,  as  in  this  case,  the  in 
strument  is  employed  not  only  to  break,  but  to  effect  the  only  entry 
contemplated  and  necessary  to  the  consummation  of  the  criminal  intent , 
when  it  is  intruded  within  the  house,  breaking  it,  effecting  an  entry, 
enabling  the  person  introducing  it  to  consummate  his  intent,  the  offence 
is  complete.  The  instrument  was  employed  not  only  for  the  purpose 
of  breaking  the  house,  but  to  effect  the  larceny  intended.  When  it  was 
mtruded  into  the  crib  the  burglar  acquired  dominion  over  the  corn 
intended  to  be  stolen.  Such  dominion  did  not  require  any  other  act 
on  liis  part.  When  the  auger  was  withdrawn  from  the  aperture  made 
with  it  the  corn  ran  into  the  sack  he  used  in  its  asportation.  There 
was  a  breaking  and  entry,  enabling  him  to  effect  his  criminal  intent 
witliout  the  use  of  an}-  other  means,  and  this  satisfies  the  requirements 
of  the  law. 

Let  the  judgment  be  affirmed. 

Judgment  affirmed. 


SECT.  II.]  HOLMES'S  CASE.  833 

SECTION  11. 

Arson, 

1  Hawk.  P.  C.  ch.  18,  sects.  1,  2.  Arson  is  a  felony  at  common 
law,  in  maliciously  and  voluntarily  burnnig  the  house  of  another  by 
night  or  by  day. 

Not  only  a  mansion-house,  and  the  principal  parts  thereof,  but  also 
any  other  house,  and  the  outbuildings,  as  barns  and  stables,  adjoining 
thereto,  and  also  barns  full  of  corn,  whether  they  be  adjoining  to  any 
house  or  not,  are  so  far  secured  by  law,  that  the  malicious  burning 
of  them  is  arson,  and  it  is  said,  that  in  an  indictment  they  are  well 
expressed  by  the  word  do?nus^  without  adding  mansionaUs. 

But  it  seems  that  at  this  day  the  burning  of  the  frame  of  a  house, ^ 
or  of  a  stack  of  corn,  »&;c.,  is  not  accounted  arson,  because  it  cannot 
come  under  the  word  domus,  which  seems  at  present  to  be  thought 
necessary  in  every  indictment  of  arson,  yet  it  is  said  that  anciently  the 
burning  a  stack  of  corn  was  accounted  arson. 


ANONYMOUS. 

Assizes.     1495. 

[Reported  Year  Book,  11  ff.  VTL  1.] 

A  MAN  was  indicted  because  he  had  feloniously  at  night  burned  a 
barn,  and  because  it  adjoined  the  house,  it  was  held  felony  at  common 
law,  and  the  party  was  hanged. 


HOLMES'S   CASE. 
King's  Bench.     1634. 

[Reported  Ctoke  Car.  376.] 

William  Holmes  was  indicted  in  London,  For  that  he,  in  April,  7 
Car.  I,,  being  possessed  of  an  house  in  London,  in  Throgmorton  street, 
in  such  a  ward,  for  six  years,  remainder  to  John  S.  for  three  years,  the 
reversion  to  the  corporation  of  Haberdashers,  in  fee  :  he  vi  et  armis, 
3  April,  7  Car.  I.,  the  said  house  "  felonice,  voluntarie,  et  raalitiose, 
igne  combussit,  ea  intentione,  ad  eandem  domum  mansionalem,  nee  non 

1  See  Mulligan  «.  State.  25  Tex.  App.  199.  —  Ep- 


834  HOLMKS'S    CASE.  [CHAP.  XII. 

diversas  alias  domos  mansionales  diversonim  ligeovum,  domini  regis, 
adtiinc  et  idem  situat.  et  existent,  ad  dictum  douuim  mansionalem  dieti 
Willielmi  Holmes  contigue  adjacent,  adtiinc  et  ibidem  felonice,  volunta- 
rie,  et  malitiose  totaliter  comburendo  et  igne  consumendo  contra  pacera." 

Upon  his  being  arraigned  at  Newgate,  he  was  found  guilty  ;  but 
before  judgment  this  indictment  was  removed  by  certiorari  into  this 
court.  It  was  argued  at  the  bar  by  Grimston,  that  it  was  not  felony  ; 
and  now  this  Term  at  the  bench. 

And,  by  Richardson,  Chief  Justice,  Jones,  and  Berkley,  [JJ.],  it  was 
held,  that  it  was  not  felony  to  burn  a  house  whereof  he  is  in  possession 
by  virtue  of  a  lease  for  years  ;  for  they  said,  that  burning  of  houses 
is  not  felony,  unless  that  they  are  wdes  alienee:  and  therefore  Britton, 
p.  16,  Bracton,  p.  146,  and  The  Book  Assize,  27,  Assize,  pi.  44,  men- 
tion, that  it  is  felony  to  burn  the  house  of  another;  and  10  Edw.  4, 
pi.  14;  3  Hen.  7,  pL  10;  10  Hen.  7,  pi.  1,  and  Poulter's  Case,  11 
Co.  29,  which  say,  that  burning  of  houses  generally  is  felony,  are  to 
be  intended  de  cedibus  alienis,  et  non  propriis :  and  although  the 
indictment  be  "•  ea  intentione  ad  comburendum  felonice,  voluntarie,  et 
malitiose,"  the  houses  of  divers  others  "•  contigue  adjacentes,"  yet 
intent  only  without  fact  is  not  felony.  Also  Berkley  and  Jones,  Jus- 
tices, held,  that  it  cannot  be  said  to  be  ci  et  arnnis  when  it  is  in  his 
own  possession. 

Jones,  Justice,  also  said,  that  he  could  not  be  well  indicted  of  felony, 
because  none  of  their  names  are  mentioned  who  were  the  owners  of 
the  houses  adjoining.  But  to  that  objection  Berkley  and  Richardson, 
[JJ.],  agreed  not. 

But  1  argued,  that  the  burning  in  the  indictment  mentioned  is  felony, 
because  it  is  capitale  crimen^  felleo  animo  perjjetratuvi,  which  is  the 
definition  of  felony  in  Co.  Lit.  391,  a.  Also  by  the  rule  in  Bracton, 
146.  "  quod  incenduim  nequiter,  et  ob  inimicitias,  factum  capitali 
poena  puniatur  ;  si  veio  sit  incendium  fortuito  vel  per  negligentiam, 
et  non  mala  conscientia,  non  sic  punietur ;  sed  versus  eum  criminaliter 
agatur."  And  it  cannot  be  said  to  be  b}'  negligence  in  another's  house  ; 
wherefore  it  is  to  be  intended  in  his  own  house.  Also  this  burning  is 
found  to  be  malitiose  ;  so  it  is  maid  conscientia  et  nequiter  Jactum. 
Also  this  burning  of  his  house  in  a  street  of  the  city  adjoining  to  the 
houses  of  others,  is  to  the  endangering  of  the  cit\-,  and  therefore  ought 
to  be  construed  to  be  felony  ;  but  so  peradventure  is  not  the  burning 
of  his  house  in  the  fields.  And  whereas  it  was  said,  that  the  inten- 
tion cannot  make  a  felony,  it  was  answered,  that  the  intention  here  is 
coupled  with  an  act  of  Inirning,  and  with  the  intendment  of  an  act 
which  is  felony;  as  5  Hen.  7,  pi.  18;  7  Hen.  7,  pi.  42;  13  Edw.  4, 
pi.  9  ;  where  a  man  delivers  goods  to  one,  and  afterwards  he  that 
delivered  them  privately  steals  them,  to  the  intent  to  charge  him,  it  is 
felony.  And  whereas  it  was  objected,  that  being  his  own  possession, 
it  cannot  be  said  vi  et  armis  ;  I  answered,  that  vi  et  armis  is  well 
enough,  where  there  is  a  malfeasance,  as  it  is  in  an   action   upon   tlie 


SECT,  ii.j  ISAAC'S 'case.  835 

case,  9  Co.  50,  b.  Also  eveiT  iiKlictiiicnt  is  vi  et  arviis  et  contra 
pacem,  where  an  act  is  done  against  tlie  couiiuonwealth :  so  it  is 
where  a  servant  runs  away  with  goods  committed  to  hi.s  trust  a'.)Ove 
forty  siiillings,  although  [)roperly  it  cannot  be  said  to  be  ci  et  armis, 
because  they  were  in  his  custody-  And  in  this  case  the  ill  consequence 
which  might  have  fallen  out  by  this  act  makes  the  oflence  the  greater ; 
and  The  Year  Books  in  10  Edw.  4,  pi.  14;  3  Hen.  7,  pi.  10;  11  Hen. 
7,  pi.  1  ;  and  Stanford,  36;  11  Co.  29;  4  Co  20,  a,  put  the  case  of 
burning  of  houses  generally,  and  not  of  the  burning^)?"  other  men's 
houses:  and  it  is  an  equal  mischief  in  a  commonwealth  to  burn  his 
own  in  a  city  or  vill  as  to  burn  the  houses  of  others,  for  the  danger 
which  may  ensue. 

But  THE  OTHER  THREE  JUSTICES  rcsolved  tit  suprci,  that  it  was  not 
felony  ;  wherefore  he  was  discharged  thereof. 

But  because  it  was  an  exorbitant  offence,  and  found,  the3'  ordered, 
that  he  should  be  fined  £500  to  the  king,  and  imprisoned  during  the 
king's  pleasure,  and  should  stand  upon  the  pillory,  with  a  paper  upon 
his  head  signifying  the  offence,  at  Westminster  and  at  Cheapside, 
upon  the  market-da}-,  and  in  the  place  where  he  committed  the  offence, 
and  should  be  bound  with  good  sureties  to  bis  good  behavior  during 
life.i 


ISAAC'S   CASE.  ^  , 

Spring  Assizes.     1799. 

[Reported  2  East  P.  C   1031.] 

John  Isaac  was  indicted  for  a  misdemeanor  in  having  unlawfully. 
wilfuU}',  and  maliciously  set  on  fire  and  burnt  a  certam  house  of 
Thomas  Isaac,  being  in  the  occupation  of  the  said  John  Isaac :  which 
house  the  indictment  alleged  was  contiguous  and  adjoining  to  certain 
dwelling-houses  of  divers  liege  subjects,  &c. ;  b}'  means  whereof  the 
same  were  in  g-reat  danger  of  beins;  set  on  fire  and  burnt.  There  was 
a  second  count  which  differed  only  in  charging  that  the  house  set  on 
fire  was  the  prisoner's  own  house. 

The  counsel  for  the  prosecution  opened  that  the  charge  to  be  proved 
against  the  defendant,  though  laid  as  a  misdemeanor,  was,  that  he  wil- 
fully set  on  fire  his  own  house  in  order  to  defraud  the  Phoenix  fire- 
insurance  office  ;  and  that  in  fact  his  own  and  several  other  person's 
Tiouses  adjoining  were  burnt  down.  Upon  which  Buller,  J.i  said,  that  ii 
otiier  persons'  houses  were  in  fact  burnt,  although  the  defwiidHiifmight 
onl}'  have  set  fire  to  his  own,  yet  under  these  circumstances  the  prisoner  / 
was  guilty,  if  at  all,  of  felony  ;  the  misdemeanor  being  merged  ;  and  he 
could  not  be  convicted  on  this  indictment ;  and  therefore  directed  ao 
acquittal.^ 

'  See  s.  c.  reported  W.  Jones,  351. —  Ed. 

2  See  Probert's  Case,  2  East  P.  C.  1030.  —  Ed, 


J 


836  COMMONWEALTH    V.    TUCKER.  TCHAP.  XII. 


jlN] 


COMMONWEALTH   y.  TUCKER. 
Supreme  Judicial  Coukt  of  Massachusetts.     1872. 

[Reported  110  Mass.,  403] 

Indictment  alleging  that  the  defendant  set  fire  to  the  barnof  Wil- 


R^n  H.  Codding,  and  by  the  kindling  of  said  fire  and  the  burning  of 
said  barn,  the  dwelling-house  of  Codding  was  "burned  and  consumed." 
At  the  trial  in  the  Superior  Court,  before  Brigham,  C,  J.,  the  evidence 
tended  to  show  that  the  barn  was  burned  entirely  ;  that  the  shingles  on 
the  roof  of  the  dwelling-house  took  fire  and  were  burned  in  two  places  ; 
and  that  persons  were  on  the  roof  keeping  it  wet  with  w^ater ;  but  in  to  r- 
how  much  the  shingles  were  burned  there  was  a  conflict  of  testimony.      ' 

The  defendant  asked  the  judge  to  instruct  the  jury  "that  they  must 
be  satisfied  that  some  portion  of  the  dwelling-house  had  been  actually 
on  fire  b}'  reason  of  the  burning  of  the  barn,  and  had  been  burned  and 
consumed  thereby  ;  and  that  the  substance  and  fibre  of  the  wood  of 
such  portion  so  on  fire  was  actually  destroyed."  But  the  judge  refused 
so  to  instruct  the  jury,  and  instructed  them  "  that  they  must  be  satis- 
fied that  some  portion  of  the  dwelling-house  had  been  actuall}-  on  fire 
by  reason  of  the  burning  of  the  barn,  and  had  been  burned  thereby,  so 
that  the  substance  of  the  wood  of  such  portion  so  on-  fire  was  actually 
burned."  The  jury  returned  a  verdict  of  guilty,  and  the  defendant 
alleged  exceptions. 

/S.  M.  Toionsend,  for  the  defendant,  cited  Commonwealth  v.  Betton, 
5  Cush.  427;  Commonwealth  v.  Van  Schaack,  16  Mass.  105. 

C.  R.  Train^  Attorney  General,  for  the  Commonwealth.  The  indict- 
ment is  upon  the  Gen.  Sts.  c.  161,  §  1,  which  provide  that  "  whoever 
wilfully  and  maliciously  burns  the  dwelling-house  of  another,"  or  "wil- 
fully and  maliciously  sets  fire  to  any  building,  by  the  burning  whereof 
such  dwelling-house  is  burnt,"  shall  be  punished.  The  instructions 
were  correct.  Commonwealth  v.  Van  Schaack,  16  Mass.  105  ;  Com- 
monwealth V.  Betton,  5  Cush.  427;  Regina  v.  Parker,  9  C.  &  P.  45  ; 
Regina  v.  Russell,  C.  &  Marsh.  541  ;  2  East  P.  C.  1020;  1  Hale  P. 
C.  568;  Roscoe  Crim.  Ev,  (8th  ed.)  281. 

Wells.  J.  The  instructions  given  to  the  jury  were  correct,  and  in 
accordance  with  the  authorities  ;  as  well  those  cited  for  the  defendant 
as  those  for  the  Commonwealth.  They  required  the  jury  to  find  that 
some  portion  of  the  dwelling-house  had  been  actually  on  fire  and  burned. 
To  have  required  them  to  find  something  more,  by  use  of  the  terms 
"  consumed"  and  "destroyed,"  as  prayed  for,  would  have  been  to  go 
beyond  the  provisions  of  the  statutes,  and  to  leave  the  jury  with  no 
precise  definition  of  that  which  was  necessary  to  constitute  the  offence. 

Exceptio7is  overruled. 


CHAP.  XIII.  J  REGINA   V.    CLOSS.  837 


CHAPTER   XIII. 
FORGERY. 


REGINA  V.  CLOSS. 
Court  for  Crown  Cases  Reserved.     1857. 

[Reported  Dears.  ^  B.  C.  C.  460.] 

The  following  case  was  reserved  and  stated  at  the  Central  Criminal 
Court.  - 

The  prisoner  was  tried  for  the  forgery  of  a  copy  of  a  painting,  on  ) 
which  he  painted  the  signature  "  John  Linnell."  ^ 

It  was  objected  Iw  the  prisoner's  counsel,  in  arrest  of  judgment, 
that  these  counts  disclosed  no  indictable  offence,  and  the  judgment  was 
respited  until  the  next  sessions,  that  the  opinion  of  this  Court  might 
be  taken  whether  or  not  the  second  and  third  counts,  or  either  of  them, 
sufficiently  showed  an  offence  indictable  at  common  law.  The  prisoner 
remains  in  custody. 

This  case  was  argued,  on  the  21st  November,  1857,  before  Cockbukn, 
C.  J.,  Erle,  J.,  Williams,  J.,  Crompton,  J.  and  Channell,  B. 

Metcalfe  appeared  for  the  Crown,  and  Mclatyre  for  the  prisoner. 

Mclntyre,  for  the  prisor.er. 

The  second  and  third  counts  are  bad  in  arrest  of  judgment.  The 
second  count  charges  in  substance  a  clieat  at  common  law,  and  that 
cheat  is  not  properly  laid.  An  indictment  for  a  cheat  at  common  law 
should  so  set  out  the  facts  as  to  make  it  appear  on  the  record  that  the 
cheat  charged  would  affect,  not  a  private  individual,  but  the  public 
generallj-  (2  Russ.  on  Crimes,  280).  The  obtaining  mone}'  by  means 
of  a  mere  assertion,  or  b}'  the  use  of  a  false  private  token,  is  not  an 
indictable  offence  at  common  law  (2  East  P.  C.  820).  In  this  count 
the  allegation  is  that  a  false  token  of  a  private  character  was  used. 

The  third  count  is  for  forger}'  of  the  name  of  John  Linnell  on  a 
picture.  Forgery  is  defined  to  be  the  fraudulent  making  or  alteration 
of  a  writing,  to  the  prejudice  of  another's  right  (2  Russ.  on  Crimes, 
318).  In  the  case  of  a  written  instrument,  the  forgery  of  the  signature 
is  reall}-  the  forgery  of  the  whole  instrument,  and  is  always  so  laid  in 
the  indictment.  Unless,  therefore,  an  indictment  would  lie  for  the 
forger}'  of  a  picture,  this  count  cannot  be  supported.  The  averments 
in  this  count  amount  to  no  more  than  this,  in  substance,  —  that  the 
prisoner  falsely  pretended  that  the  picture  was  Linnell's.  To  falsely 
pretend  that  a  gun  was  made  by  Manton  would  be  no  offence  at  com- 

1  This  short  statement  is  substituted  for  the  copy  of  the  indictment.  —  Ed. 


838  REGINA   V.   GLOSS.  [CHAP.  XIII. 

mon  law ;  and  no  case  has  gone  the  length  of  holding  that  to  stamp 
the  name  of  Manton  on  a  gun  would  be  forgery. 

Crompton,  J. —  That  would  be  forger}'  of  a  trade  mark,  and  not  of 
a  name. 

CocKBURN,  C.  J. —  Stamping  a  name  on  a  gun  would  not  be  a  writ- 
ing ;  it  would  be  the  imitation  of  a  mark,  not  of  a  signature. 

Mdntyre.  The  name  put  by  a  painter  in  the  corner  of  a  picture 
is  not  his  signature.  It  is  onl}'  a  mark  to  show  that  the  picture  was 
painted  by  him.  An}'  arbitrar}'  sign  or  figure  might  be  used  for  the 
same  purpose  instead  of  the  name  ;  it  is  a  part  of  the  painting,  and 
every  faithful  copy  would  contain  it.  The  averments  mean  that  the 
whole  picture  was  made  to  represent  the  whole  of  tlie  original ;  and  the 
averment  of  the  imitation  of  the  signature  is  no  more  than  an  aver- 
ment of  the  imitation  of  a  tree  or  a  house  in  the  original.  There  is  no 
allegation  that  tlie  picture  was  passed  otf  as  the  original,  or  the  signa- 
ture as  the  genuine  signatui'e  ;  neither  is  there  any  averment  that  the 
name  was  painted  for  the  purpose  of  inducing  the  belief  that  the  picture 
was  the  original. 

Metcalfe,  for  the  Crown.  It  is  not  necessary  to  show  that  the  cheat 
alleged  in  a  count  for  cheating  at  common  law  is  one  which  affects  the 
public  generalh'.  If  to  a  bare  liej'ou  add  a  false  token,  it  is  indictable, 
and  it  is  a  mistake  to  suppose  that  the  public  must  be  affected. 

Erle,  J.  —  The  prisoner  did  not  get  the  money  for  the  name  but  for 
the  picture. 

Metcalfe.  He  obtained  it  by  the  whole  transaction.  In  Worrel's 
case,  Trem.  P.  C.  106,  deceitfully  counterfeiting  a  general  seal  or  mark 
of  the  trade  on  cloth  of  a  certain  description  and  quality,  was  held  to 
be  an  indictable  cheat.  This  case  and  Farmer's  case,  Trem.  P.  C.  109. 
show  that  the  fraud  need  not  be  of  a  strictly  pulilic  nature,  and  that 
an\' device  calculated  to  defraud  an  ordinaril}'  cautious  person  is  indict- 
able. In  this  case  the  picture  was  in  fact  a  device  calculated  to  deceive 
the  pui)lic. 

The  third  count  for  forgery  is  good.  In  Regina  v.  Sharman,  Dears. 
C.  C.  285,  it  was  decided  that  it  is  an  offence  at  common  law  to  utter 
a  forged  instrument,  the  forgery  of  which  is  an  offence  at  common  law, 
and  that  the  effecting  the  fraud  is  immaterial.  This  decision  over- 
ruled the  decision  in  Regina  v.  Boult,  2  Car.  &  Kir.  604. 

A  false  certificate  in  writing  is  the  sul)ject  of  an  indictment  at  com- 
mon law  ;  Regina  v.  Toshack,  1  Den.  C.  C.  492. 

I  therefore  contend  that  where,  as  here,  the  name  of  the  artist  is 
painted  on  the  picture,  it  is  in  the  nature  of  a  certificate,  and  the  fact 
that  the  signature  is  on  canvas,  instead  of  being  on  a  separate  piece 
of  paper,  does  not  render  tlie  offence  less  indictable. 

Williams,  J.  —  But  it  is  consistent  with  all  the  allegations  that  the 
prisoner  may  have  sold  tlie  picture  without  calling  attention  to  the 
signature. 

Metcalfe.  The  forging  the  name  on  a  picture  is  in  fact  a  forger}'  of 
the  picture. 


CHAT.  XIII.]  REGINA    V.    t'LOSS.  839 

CocKBURN,   C.  J. —  If  \-oa  go  beyond  writing,  where  are  you  to  stop? 
Can  sculpture  be  the  subject  of  forgery-  ? 
Mclntp-e  repHed. 

Cuj:  ado.  milt. 
Tlie  judgment  of  the  Court  was  delivered,  on  30th  November,  1857, 

by 

CocKBURN,  C.  J. —  Tlie  defendant  was  indicted  on  a  charge,  set  out  ^ 
in  tlirce  counts  of  the  indictment,  that  he  had  sold  to  one  Fitzpatrick 
a  picture  as  and  for  an  original  picture  painted  by  Mr.  Linnell,  when 
in  point  of  fact  it  was  only  a  oop^'  of  a  picture  which  Mr.  Linnell  had 
painted ;  and  that  he  passed  it  off  b}-  means  of  having  the  name  "  J. 
Linnell "  painted  in  tlie  corner  of  the  picture,  in  imitation  of  the  origi- 
nal one,  on  which  the  name  was  painted  by  the  painter.  Ui)on  the  J 
first  count,  for  obtaining  money  b}-  false  pretences,  the  defendant  was 
acquitted  ;  the  second  was  for  a  cheat  at  common  law  ;  and  the  third 
was  for  a  cheat  at  common  law  by  means  of  a  forgery.  As  to  the  third 
count  we  are  all  of  the  opinion  that  there  was  no  forger}'.  A  forger}' 
mnst  be  of  some  document  or  writing  ;  and  this  was  merely  in  the 
nature  of  a  mark  put  upon  the  painting  with  a  view  of  identifying  it, 
and  was  no  more  than  if  the  painter  put  any  other  arbitrary  mark  as  a 
recognition  of  the  picture  being  his.  As  to  the  second  count,  we  have 
carefully  examined  the  authorities,  and  the  result  is  that  we  think  if  a 
person,  in  the  course  of  his  trade  openly  and  publicly  carried  on,  were 
to  put  a  false  mark  or  token  upon  an  article,  so  as  to  pass  it  off  as  a 
genuine  one,  when  in  fact  it  was  only  a  spurious  one,  and  the  article 
was  sold  and  money  obtained  by  means  of  that  false  mark  or  token, 
that  would  be  a  cheat  at  common  law.  As,  for  instance,  in  the  case 
put  by  way  of  example  during  the  argument,  if  a  man  sold  a  gun  with 
the  mark  of  a  particular  manufacturer  upon  it,  so  as  to  make  it  appear 
like  the  genuine  production  of  the  manufacturer,  that  would  be  a  false 
mark  or  token,  and  the  party  would  be  guilty  of  a  cheat,  and  therefore 
liable  to  punishment  if  the  indictment  were  fairly  framed  so  as  to 
meet  the  case  ;  and  therefore,  upon  the  second  count  of  this  indictment, 
the  prisoner  would  have  been  liable  to  have  been  convicted  if  that 
count  had  been  properly  framed  ;  but  we  think  that  count  is  faulty  in 
this  respect,  that,  although  it  sets  out  the  false  token,  it  does  not  suffi- 
ciently show  that  it  was  by  means  of  such  false  token  the  defendant 
was  enabled  to  pass  off  the  picture  and  obtain  the  money.  The  convic- 
tion, therefore,  cannot  be  sustained. 

Crompton,  J. —  The  modern  authorities  have  somewhat  qualified  the 
older  ones,  but  I  do  not  wish  to  pledge  myself  to  the  view  taken  as  to 
the  nature  of  the  false  token,  wliich  would  amount  to  a  cheat  at  com- 
mon law.  I  would  be  inclined  to  adopt  the  view  taken  by  the  rest  of 
the  Court,  but  do  not  pledge  myself  to  it.  I  concur  in  the  judgment 
that  this  conviction  cannot  be  sustained  upon  the  grounds  stated  by 
the  Chief  Justice. 

Conviction  quashed 


840  EEGINA    V.    RITSON.  [CHAP.  XIII. 


REGINA  y.  RITSON. 

Court  for  Crowx  Cases  Reserved.     1869. 

{Reported  L.  R.  1  C.  C.  200.] 

Case  stated  by  Hayes,  J. :  — 

The  prisoners  were  indicted  at  the  last  Manchester  assizes  under 
24  &  25  Vict.  c.  98,  §  20,  for  forging  a  deed  with  intent  to  defraud 
J.  Gardner. 

W.  Ritson  was  the  father  of  S.  Ritson.  He  had  been  entitled  to 
certain  land  which  had  been  conveyed  to  him  in  fee,  and  he  had  bor- 
rowed of  the  prosecutor,  J.  Gardner,  on  the  security  of  this  land,  more 
than  730^.,  for  which  he  had  given  on  the  10th  of  January,  1868,  an 
equitable  mortgage  by  written  agreement  and  deposit  of  title  deeds. 

On  the  5lh  of  May,  1868,  W.  Ritson  executed  a  deed  of  assignment 
under  the  Bankruptcy  Act,  1861,  conveying  all  his  real  and  personal 
estate  to  a  trustee  for  the  benefit  of  creditors  ;  and  on  the  7th  of  May, 
1868,  by  deed  between  the  trustee  and  W.  Ritson  and  the  prosecutor, 
reciting,  amongst  other  things,  the  deed  of  assignment  and  the  mort- 
gage, and  that  the  money  due  on  the  mortgage  was  in  excess  of  the 
value  of  the  land,  the  trustee  and  W.  Ritson  conveyed  the  land  and 
all  the  estate,  claim,  etc.,  of  the  trustees  aud  W.  Ritson  therein,  to  the 
prosecutor,  his  heirs  and  assigns,  for  ever.  After  the  execution  of  this 
conveyance  the  prosecutor  entered  into  possession  of  the  land.  Subse- 
quently S.  Ritson  claimed  title  to  the  land,  and  commenced  an  action 
of  trespass  against  the  prosecutor.  The  prosecutor  then  saw  the  attor- 
ney for  S.  Ritson,  who  produced  the  deed  charged  as  a  forged  deed, 
and  the  prosecutor  commenced  this  prosecution  against  W.  and  S. 
Ritson. 

This  deed  was  dated  the  12th  of  March,  1868,  the  date  being  before 
W.  Ritson's  deed  of  assignment  and  tht  conveyance  to  the  prosecutor, 
and  purported  to  be  made  between  W.  Ritson  of  the  one  part  and  S. 
Ritson  of  the  other  part.     It  recited  the  original  conveyance  in  fee  to 
W.  Ritson,  and  that  W.  Ritson  had  agreed  with  S.  Ritson  for  a  lease 
to  him  of  part  of  the  land  at  a  yearly  rent,  and  tlien  professed  to  demise 
to  S.  Ritson  a  large  part  of  the  frontage  and  most  valual)le  part  of  the 
land  conveyed  to  the  prosecutor,  as  mentioned  above,  for  the  term  of 
999  years  from  the  25th  of  March  then  instant.     The  deed  contained 
no  notice  of  any  title,  legal  or  equitable,  of  the  prosecutor,  and  con- 
tained the  usual  covenants  between  a  lessor  and  lessee.     It  was  exe- 
cuted by  both  W.  and  S.  Ritson. 
Z'    The  case  then  stated  evidence  which  shewed  that  the  deed  had  in 
/  fact  been  executed  after  the  assignment  to  W.  Ritson's  creditors  and 
I   after  the  conveyance  to  the  prosecutor,  and  that  the  deed  had  been 
I  fraudulently  antedated  by  W.  and  S.  Ritson  for  the  purpose  of  over- 
Vreaching  the  conveyance  to  the  prosecutor. 


CHAP.  XIII.]  REGINA   V.   RITSON.  841 

The  counsel  for  the  prisoners  contended  that  the  deed  could  not  be  a 
forger}',  as  it  was  really  executed  by  the  parties  between  whom  it  pur- 
ported to  be  made.  The  learned  judge  told  the  jury  that  if  the  alleged 
lease  was  executed  after  the  conveyance  to  the  prosecutor,  and  ante- 
dated with  the  purpose  of  defrauding  him,  it  would  be  a  forger}-.  The 
jury  found  both  the  prisoners  guilt}'. 

The  question  was  whether  tlie  prisoners  were  properly  convicted  of 
forgery  under  the  circumstances. 

The  case  was  argued  before  Kelly,  C.  B.,  Martin,  B.,  Blackburn, 
Lush,  and  Brett,  JJ. 

Torr,  for  the  prisoners.  The  deed  in  this  case  was  not  forged,  be- 
cause it  was  really  made  between  and  executed  by  W.  and  S.  Ritson, 
the  persons  by  whom  it  purported  to  be  executed,  and  between  whom 
it  purported  to  have  been  made.  The  date  of  the  deed  was  false,  but 
a  false  statement  in  a  deed  will  not  render  the  deed  a  forgery.  If  this 
deed  were  held  to  be  a  forgery,  then  any  instrument  containing  a  false 
statement  made  fraudulently  would  be  forged. 

[Blackburn,  J.  Tliis  is  not  merely  a  deed  containing  a  false  state- 
ment, but  it  is  a  false  deed.] 

There  is  no  modern  case  to  shew  that  a  deed  like  this  is  a  forgery. 
To  constitute  a  forgery,  tliere  must  be  either,  first,  a  false  name,  or, 
secondly,  an  alteration  of  another's  deed,  or,  thirdly,  an  alteration  of 
one's  own  deed.  There  is  no  modern  authority  to  include  any  other 
kind  of  forgery.  Suhvay  v.  Wale,  Moore,  655,  appears  an  authority 
against  the  prisoners,  but  that  was  a  decision  upon  5  Eliz.  c.  14,  which 
is  not  worded  in  the  same  way  as  24  &  25  Vict.  c.  98,  §  20.  The  defi- 
nitions of  the  text-writers,  which  may  seem  to  include  a  case  like  the 
present,  are  not  in  themselves  authorities.  The  decisions  on  which  the 
definitions  purport  to  be  based,  and  not  the  definitions  themselves,  are 
the  authorities  which  must  be  looked  at. 

Addison,  for  the  prosecution.  The  deed  in  this  case  is  a  forgery, 
because  it  is  a  false  deed  fraudulently  made.  Although  there  is  no 
recent  case  where  similar  facts  have  been  held  to  constitute  a  forgery, 
yet  such  a  state  of  facts  comes  within  the  definitions  of  forgery  given 
by  the  text-books.  Russell,  vol.  ii,  p.  709,  4th  ed.  ;  Hawkins,  P.  C. 
bk.  i,  cap.  20,  p.  263,  8th  ed. ;  3  Inst.  169  ;  Bacon's  Abr.,  tit.  Forgery, 
A.  ;  Comyn's  Dig.,  tit.  Forgery,  A.  I.  Salway  v.  Wale,  Moore,  655, 
is  also  an  authority  for  the  conviction.  The  essence  of  forgery  is  the 
false  making  of  an  instrument.     Rex  v.  Parkes,  2  Leach,  at  p.  785. 

Kelly,  C.  B.  During  the  argument  I  certainly  entertained  doubts 
on  this  question,  because  most,  or  indeed  all,  the  authorities  cited  are 
comparatively  ancient.  Tliey  are  all  before  the  statute  (24  &  25  Vict. 
c.  98,  §  20),  on  which  this  indictment  is  framed,  and  before  11  Geo. 
4  &  1  Wra.  4,  c.  66,  the  statute  v/hich  was  in  force  when  most  of  the 
modern  text-books  on  criminal  law  were  written.  When,  however,  we 
look  to  all  these  authorities,  and  to  the  text-writers  of  the  highest  rep- 


842  REGINA    V.    KITSON.  [CHAP.  XIII. 

utation,  such  as  Comyns  (Dig.,  tit.  Forgery,  A.  I.),  Bacon  (Abr,,  tit. 
Forgery,  A.),  and  Coke  (3  Inst.  169),  we  find  there  is  no  conflict  of 
authority.  Sir  M.  Foster  (Foster's  Crown  Cases,  116),  Russell  on 
Crimes  (vol.  ii,  p.  709,  4th  ed.),  and  other  writers,  also  all  agree.  The 
definition  of  forgery  is  not,  as  has  been  suggested  in  argument,  that 
ever}'  instrument  containing  false  statements  fraudulently  made  is  a 
forgery  ;  but,  adopting  the  correction  of  my  Brother  Blackburn,  that 
.every  instrument  which  fraudulently  purports  to  be  that  which  it  is  not 
is  a  forgery,  whether  the  falseness  of  the  instrument  consists  in  the 
fact  that  it  is  made  in  a  false  name,  or  that  the  pretended  date,  when 
"that  is  a  material  portion  of  the  deed,  is  not  the  date  at  which  the  deed 
was  in  fact  executed.  I  adopt  this  definition.  It  is  impossible  to  dis- 
tinguish this  case  in  principle  from  those  in  which  deeds  made  in  a  false 
name  are  held  to  be  forgeries. 

There  is  no  definition  of  forgery  in  24  &  25  Vict.  c.  95,  but  the 
offence  has  been  defined  by  very  learned  authors,  and  we  think  this 
case  falls  within  their  definitions.  Under  these  circumstances  the  con- 
viction must  be  affirmed. 

Martin,  B.  I  am  of  the  same  opinion.  Mr.  Torr  was,  no  doubt, 
right  in  saying  that  this  is  not  a  familiar  case.  That,  however,  need 
not  affect  the  princi[)le  to  be  applied  in  deciding  it.  All  the  authorities 
are  to  the  same  effect.  What  is  laid  down  on  the  subject  by  Comyns 
(Dig.,  tit.  Forgery,  A.  I.),  Russell  on  Crimes  (vol.  ii,  p.  709,  4th  ed.), 
Sir  M.  Foster  (Foster's  Crown  Cases,  116),  and  in  Tomlin's  Law  Dic- 
tionary (Forgery),  is  good  sense.  All  the  authorities,  both  the  ancient 
and  modern,  agree.  There  is  no  reason  wh}'  the  principle  of  these 
authorities  should  not  apply  to  the  present  case,  except  that  the  facts 
here  are  somewhat  unusual. 

Blackburn,  J.  I  am  of  the  same  opinion.  By  24  &  25  Vict.  c.  98, 
§  20,  it  is  a  felony  to  "  forge"  any  deed  with  intent  to  defraud.  The 
material  word  in  this  section  is  "forge."  There  is  no  definition  of 
"forge"  in  the  statute,  and  we  must  therefore  inquire  wliat  is  the 
meaning  of  tlie  word.  The  definition  in  Comyns  (Dig.,  tit.  Forgery, 
A.  I.)  is  ''  forger}^  is  where  a  man  fraudulenth'  writes  or  publishes  a 
false  deed  or  writing  to  the  prejudice  of  the  right  of  another,"  —  not 
making  an  instrument  containing  that  which  is  false,  which,  I  agree 
with  Mr.  Torr,  would  not  be  forgery,  but  making  an  instrument  which 
purports  to  be  that  which  it  is  not.  Bacon's  Abr.,  (tit.  Forgery,  A.), 
wliich,  it  is  well  known,  was  compiled  from  the  MS.  of  Chief  Baron 
Gilbert,  exolains  forger}'  thus  :  "  The  notion  of  forger}'  doth  not  so 
much  consist  in  the  counterfeiting  of  a  man's  hand  and  seal,  .  .  .  but 
in  the  endeavoring  to  give  an  appearance  of  truth  to  a  mere  deceit  and 
falsity,  and  either  to  impose  that  upon  the  world  as  the  solemn  act  of 
another  which  he  is  in  no  way  privy  to,  or  at  least  to  make  a  man's  own 


CHAP.  XIII.]  REGINA    V.    KITSON.  843 

act  appear  to  have  been  done  at  a  time  when  it  was  not  done,  and  by 
force  of  such  a  falsity'  to  give  it  an  operation  which  in  truth  and  justice 
it  ought  not  to  have."  The  material  words,  as  appUcable  to  the  facts 
of  the  present  case,  are,  "■  to  make  a  man's  own  act  appear  to  have 
been  done  at  a  time  wlien  it  was  not  done."  Wlicu  an  instrument  pro- 
fesses to  be  executed  at  a  date  different  from  that  at  which  it  really 
was  executed,  and  the  false  date  is  material  to  the  operation  of  the 
deed,  if  the  false  date  is  inserted  knowingly  and  with  a  fraudulent 
intent,  it  is  a  forger}'  at  common  law. 

Ordinarily  the  date  of  a  deed  is  not  material,  but  it  is  here  shown  by 
extrinsic  evidence  that  the  date  of  the  deed  was  material.  Unless  the 
deed  had  been  executed  before  the  5th  of  Ma}-,  it  could  not  have  con- 
veyed an}'  estate  in  the  land  in  question.  The  date  was  of  the  essence 
of  the  deed,  and  as  a  false  date  was  inserted  with  a  fraudulent  intent, 
the  deed  was  a  false  deed,  within  the  definition  in  Bacon's  Abridgment. 
This  is  a  sufficient  authority. 

If,  however,  there  were  no  authority,  I  think  that  the  principle  I  have 
mentioned  is  right  and  expedient.  Besides  this,  however,  Coke  (3  Inst. 
169),  speaking  of  forgery  before  the  statute  of  Elizabeth  (5  Eliz.  c.  14), 
states  that  the  principle  of  forgery  does  apply  to  a  case  like  this,  and 
that  to  make  a  deed  purporting  to  bear  a  false  date  may  be  a  forgery. 
To  the  same  effect  is  Sir  M.  Foster  in  Lewis's  Case,  Fostei-'s  Crown 
Cases,  116,  where  all  the  judges  in  consultation  assumed  that  ante- 
dating a  deed  might  be  forgery. 

All  the  text-books  agree,  and  there  is  no  single  authority  against  the 
definition  I  have  stated.  Mr.  Torr,  however,  says  that  the  definition 
is  old.     I  think  that  this  gives  it  all  the  greater  weight. 

Lush,  J.  I  also  think  that  the  conviction  should  be  affirmed.  If 
the  parties  to  this  deed  had  inserted  the  true  date  in  the  first  instance 
and  had  subsequently  altered  it,  there  is  no  question  that  it  would  have 
been  a  forgery.  The  ofl!"ence  would  then  have  fallen  within  the  letter  of 
24  &  25  Vict.  c.  98,  §  20,  which  says,  "Whoever  with  intent  to  defraud 
shall  forge  or  alter  .  .  .  any  deed,"  etc.,  shall  be  guilty  of  felony.  It 
would  be  absurd  to  hold  that  an  alteration  might  constitute  a  forgery, 
but  that  an  original  false  making  would  not.  We  could  not  yield  to 
such  a  distinction  unless  we  were  obliged.  I  am  satisfied  that  '•  forge  " 
in  §  20  of  24  &  25  Vict.  c.  98,  should  be  understood  in  the  sense  in 
whicli  that  word  is  used  in  the  authorities,  new  and  old,  on  the  subject. 
To  make  a  deed  appear  to  be  that  which  it  is  not,  if  done  with  a  fraud- 
ulent intent  to  deceive,  is  a  forgery,  whether  the  falsehood  consist  in 
the  name  or  in  any  other  matter. 

Bkett,  J.,  concurred.  Conviction  affirmed 


1{/U)i 


844  '  COMMONWEALTH    V.    RAY.  [CHAP.  XIII. 


COMMONWEALTH  v.  RAY. 

Supreme  Judicial  Court  of  Massachusetts.      1855. 

{Reported  3  Gray,  441.] 

Forgery.  The  indictment  alleged  that  the  defendant,  on  the  13ll» 
of  Jul}',  1854,  at  Boston,  "  did  falsely  make,  forge,  and  counterfeit  a 
certain  writing  in  the  form  and  similitude  of  a  railroad  ticket  or  pass, 
of  the  tenor  following  ; 

New  York  Central  Railroad. 

Albany  to  Buffalo. 

Good  this  day  only,  unless  indorsed  by  the  conductor. 

D.  L.  Fremyre. 
Said  counterfeit  writing  purporting  to  be  a  ticket  or  pass  issued  by  the 
New  York  Central  Railroad  Company,  whereby  said  corporation  prom- 
ise and  assure  to  the  owner  and  holder  thereof  a  passage  in  their  cars 
over  their  railroad,  extending  from  Albany  to  Buffalo  in  the  State  of 
New  York  ;  said  ticket  being  signed  b}'  D.  L.  Fremyre,  on  their  behalf, 
he  being  their  ticket  clerk,  or  ticket  agent ;  ^  .  .  .  and  th^t-th©  said 
Miner  L.  Ray  did  then  and  there  falseh'  make,  forge,  and  counterfeit 
one  of  said  tickets,  with  intent  to  defraud,  against  the  peace  of  the 
Commonwealth." 

At  the  trial  in  the  Municipal  Court  the  jurj'  returned  a  verdict  of 
guilty,  and  the  defendant  alleged  exceptions. 

Dewey,  J.  The  instrument  here  set  forth  as  the  subject  of  the  alleged 
forgery  is  not  one  included  in  the  enumeration  in  the  Rev.  Sts.  c.  127, 
§  1.  It  is  not,  therefore,  a  statute  offence.  But  man}-  writings,  not 
enumerated  in  the  statutes,  are  yet  the  subjects  of  forgery  at  common 
law.  The  definition  of  forgery  at  common  law  is  quite  sufficient  to 
embrace  the  present  case.  Take  that  in  4  Bl.  Com.  247,  "the  fraud- 
ulent making  or  alteration  of  a  writing  to  the  prejudice  of  another  man's 
riglit,"  or  that  of  2  East  P.  C.  861  (which  is  supported  by  Bac.  Ab. 
Forgery,  B,  and  followed  in  2  Russell  on  Crimes,  358),  that  "  the 
counterfeiting  of  any  writing,  with  a  fraudulent  intent,  whereby  another 
may  be  prejudiced,  is  forgery  at  common  law;  "  or  that  of  Mr.  Justice 
Buller,  "  the  making  a  false  instrument  with  intent  to  deceive."  Rex 
V.  Coogan,  2  East  P.  C.  949.  In  3  Greenl.  Ev.  §  103,  it  is  said  that 
forgery  "  may  be  committed  of  any  writing  which,  if  genuine,  would 
operate  as  the  foundation  of  another  man's  liabilit3\"  See  also  Regina 
V.  Boult,  2  Car.  &  K.  604. 

It  is  said  that  this  instrument  does  not  import  a  contract  or  promise 
of  any  kind.  We  think  otherwise,  and  that,  although  it  is  wanting  in 
details  of  language  fully  stating  the  nature  and  extent  of  such  contract, 
it  has  written  language  sufl!iciently  indicative  of  a  promise  or  obligation 

1  Part  of  the  statement  of  facts,  the  arguments,  and  part  of  the  opinion  are 
omitted.  —  Ed. 


CHAP.  XIII.]  COMMONWEALTH    V.    RAY.  845 

to  render  it  an  instrument  of  value,  b}'  the  false  and  fraudulent  making 
of  which  the  rights  of  others  would  be  prejudiced.  This  false  instru- 
ment would,  if  genuine,  have  created  a  liability  on  the  part  of  the  New 
York  Central  Railroad  Compan\'  to  carry  the  holder  thereof  from  Alban}' 
to  Buffalo,  and  would,  therefore,  have  been  a  contract  of  value  in  the 
hands  of  a  third  person. 

It  is  then  objected  that  the  crime  of  forger}'  cannot  be  committed  by 
counterfeiting  an  instrument  wholly  printed  or  engraved,  and  on  which 
there  is  no  written  signature  personally  made  by  those  to  be  bound. 
The  question  is  whether  the  writing,  the  counterfeiting  of  which  is 
forgery,  mav  not  be  wholly  made  by  means  of  printing  or  engraving,  or 
must  be  written  by  the  pen  by  the  party  who  executes  the  contract. 
In  the  opinion  of  the  court,  such  an  instrument  may  be  the  subject  of 
fergery  when  the  entire  contract,  including  the  signature  of  the  party, 
has  been  printed  or  engraved.  The  cases  of  forger}',  generally,  are 
cases  of  forged  handwriting.  The  course  of  business,  and  the  neces- 
sities of  greater  facilities  for  despatch,  have  introduced  to  some  extent 
the  practice  of  having  contracts  and  other  instruments  wholl}'  printed 
or  engraved,  even  including  the  name  of  the  party  to  be  bound. 

The  effect  to  be  given  to  the  words  "  writing  "  and  "  written  "  was 
much  considered  by  this  court  in  the  case  of  Henshaw  v.  Foster,  9  Pick. 
312.  It  arose  in  anotlier  form,  and  was  not  a  question  of  forgery. 
But  in  the  learned  opinion  of  the  late  Chief  Justice  Parker,  this  ques- 
tion, as  to  what  was  embraced  in  these  terms,  seems  to  be  fully  settled, 
and  it  was  there  held  that  the  words  "writing"  or  "written  "  included 
the  case  of  instruments  printed  or  engraved,  as  well  as  those  traced  by 
the  pen. 

It  has  never  been  considered  any  objection  to  contracts  required  by 
the  statute  of  frauds  to  be  in  writing  that  thev  were  printed.  It  is 
true  that  in  those  cases,  usually,  tlie  signature  at  the  bottom  is  in  man- 
uscript, and  the  printed  articles  of  contract  leave  the  name  to  be  thus 
filled  up.  In  such  cases,  the  signature  by  the  pen  is  necessary  to  the 
execution  of  the  contract.  And  this  is  the  more  expedient  mode,  as  it 
furnishes  tlie  greater  facility  for  ascertaining  its  genuineness.  But  if 
an  individual  or  a  corporation  do  in  fact  elect  to  put  into  circulation 
contracts  or  bonds  in  which  the  names  of  the  contracting  parties  are 
printed  or  litliograplied  as  a  substitute  for  being  written  with  the  pen, 
and  so  intended,  the  signatures  are  to  all  intents  and  purposes  the 
same  as  if  written.  It  may  be  more  difficult  to  establish  the  fact  of 
their  signature;  but  if  shown,  the  effect  is  the  same.  Such  being  the 
effect  of  such  form  of  executing  like  contracts,  it  would  seem  to  follow 
that  any  counterfeit  of  it,  in  the  similitude  of  it,  would  be  making  a 
false  writing,  purporting  to  be  that  of  another,  with  the  intent  to 
defraud.^  .   .  . 

1  The  learned  judge  held  that  the  indictment  was  defective. —  Ed. 


846  COMMONWEALTH    V.    BALDWIN.  [ClIAP.  XIII. 

COMMONWEALTH  v.  BALDWIN. 

Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  11   Gray,  197.1 

Thomas,  J.  This  is  an  indictment  for  tlie  forgeiy  of  a  promissory 
note.  The  indictment  alleges  that  the  defendant  at  Worcester  in  this 
county  "feloniously  did  falsely  make,  forge,  and  counterfeit  a  certain 
false,  forged,  and  counterfeit  promissory 'note,  which  false,  forged,  and 
counterfeit  promissoiy  note  is  of  the  following  tenor,  that  is  to  say  : 

'$457.88.  Worcester,  Aug.  21,  1856.  Four  months  after  date  we 
promise  to  pay  to  the  order  of  Russell  Phelps  four  hundred  fifty  seven 
dollars  ^^q,  payable  at  Exchange  Bank,  Boston,  value  received. 

Schouler,  Baldwin  &  Co.' 
with  intent  thereby  then  and  there  to  injure  and  defraud  said  Russell 
Phelps." 

The  circumstances  under  which  the  note  was  given  are  thus  stated 
in  the  bill  of  exceptions  :  Russell  Phelps  testified  that  the  note  was 
executed  and  delivered  by  the  defendant  to  him  at  the  Bay  State 
House  in  Worcester,  on  the  21st  of  August,  1856,  for  a  note  of  equal 
amount,  which  he  held,  signed  by  the  defendant  in  his  individual 
name,  and  which  was  overdue  ;  and  that  in  reply  to  the  inquiry  who 
were  the  members  of  the  firm  of  Schouler,  Baldwin  &  Co.,  the  defend- 
ant said,  "  Henr}' W.  Baldwin,  and  William  Schouler  of  Columbus." 
He  further  said  that  no  person  was  represented  by  the  words  "  &  Co." 
It  appeared  in  evidence  that  the  note  signed  Schouler,  Baldwin  tJt  Co. 
was  never  negotiated  by  Russell  Phelps.  The  government  offered 
evidence  which  tended  to  prove  either  tliat  there  never  had  been  any 
partnership  between  Schouler  and  Baldwin,  the  defendant;  or,  if  there 
ever  had  been  a  partnership,  that  it  was  dissolved  in  the  month  of 
July,  1856. 

The  question  raised  at  the  trial  and  discussed  here  is  whether  the 
execution  and  delivery  of  the  note,  under  the  facts  stated,  and  with 
intent  to  defraud,  was  a  forgeiy. 

It  would  be  difficult  perhaps  b}-  a  single  definition  of  the  crime 
of  forgery  to  include  all  possible  cases.  Forger}',  speaking  in  general 
terms,  is  the  false  making  or  material  alteration  of  or  addition  to  a 
written  instrument  for  the  purpose  of  deceit  and  fraud.  It  ma}-  be  the 
making  of  a  false  writing  purporting  to  be  that  of  another.  It  may  be 
the  alteration  in  some  material  particular  of  a  genuine  instrument  by 
a  change  of  its  words  or  figures.  It  may  be  the  addition  of  some 
material  provision  to  an  instrument  otherwise  genuine.  It  ma}'  be  the 
appending  of  a  genuine  signature  of  another  to  an  instrument  for 
which  it  was  not  intended.  The  false  writing,  alleged  to  have  been 
made,  may  purport  to  be  the  instrument  of  a  person  or  firm  existing, 
or  of  a  fictitious  person  or  firm.     It  may  be  even  in  the  name  of  the 


CHAP.  XIII.]  COMMONWKALTIl    V.    BALDWIN.  847 

piisoner,  if  it  purports  to  be,  and  is  desired  to  be  received  as  the 
instrument  of  a  third  person  liaving  the  same  name. 

As  a  general  rule,  however,  to  constitute  forger}-,  the  writing  falsely 
made  must  purport  to  be  the  writing  of  another  part}'  than  the  person 
making  it.  The  mere  false  statement  or  implication  of  a  fact,  not  hav- 
ing reference  to  the  person  by  whom  the  instrument  is  executed,  will 
not  constitute  the  crime. 

An  exception  is  stated  to  this  last  rule  by  Coke,  in  the  Third  Insti 
tute,  169,  where  A.  made  a  feoffment  to  B.  of  certain  land,  and  after- 
wards made  a  feoffment  to  C.  of  the  same  land  with  an  antedate 
before  the  feoffment  to  B.  This  was  certainly  making  a  false  instru- 
ment in  one's  own  name  ;  making  one's  own  act  to  appear  to  have 
been  done  at  a  time  when  it  was  not  in  fact  done.  We  fail  to  under- 
stand on  what  principle  this  case  can  rest.  If  the  instrument  had  been 
executed  in  the  presence  of  the  feoffee  and  antedated  in  his  presence, 
it  clearly  could  not  have  been  deemed  forgery.  Beyond  this,  as  the 
feoffment  took  effect,  not  by  the  charter  of  feoffment,  but  by  tlie 
livery  of  seisin  —  the  entry  of  the  feoffor  upon  the  land  with  the  charter 
and  the  delivery  of  the  twig  or  clod  in  the  name  of  the  seisin  of  all  the 
land  contained  in  the  deed  — it  is  not  easy  to  see  how  the  date  could 
be  material. 

The  case  of  Mead  v.  Young,  4  T.  R.  28,  is  cited  as  another  excep- 
tion to  the  rule.  A  bill  of  exchange  payable  to  A.  came  into  the 
hands  of  a  person  not  the  payee  but  having  the  same  name  with  A. 
This  person  indorsed  it.  In  an  action  by  the  indorsee  against  the 
acceptor,  the  question  arose  whether  it  was  competent  for  the  defend- 
ant to  show  that  the  person  indorsing  the  same  was  not  the  real  payee. 
It  was  held  competent,  on  the  ground  that  the  indorsement  was  a 
forgery,  and  that  no  title  to  the  note  could  be  derived  through  a 
forgery.  In  this  case  of  Mead  v.  Young,  the  party  assumed  to  use  the 
name  and  power  of  the  payee.  The  indorsement  purported  to  be  used 
was  intended  to  be  taken  as  that  of  another  person,  tlie  real  payee. 

The  writing  alleged  to  be  forged  in  the  case  at  bar  was  the  hand-  \ 
writing  of  the  defendant,  known  to  be  such  and  intended  to  be  received    \ 
as  such.     It  binds  the  defendant.     Its  falsity  consists  in  the  implica- 
tion  that  he  was  a  partner  of  Schouler  and  authorized  to  bind  him  by 
his  act.     This,  though  a  fraud,  is  not,  we  think,  a  forgery. 

Suppose  the  defendant  had  said  in  terms,  "  I  have  authority  to  sign 
Schouler's  name,"  and  then  had  signed  it  in  the  presence  of  the 
promisee.  He  would  have  obtained  the  discharge  of  the  former  note 
by  a  false  pretence,  a  pretence  that  he  had  authority  to  bind  Schouler. 
"  It  is  not  ,"  says  Sergeant  Hawkins,  "the  bare  writing  of  an  instru- 
ment in  another's  name  without  his  privity,  but  the  giving  it  a  false 
appearance  of  having  been  executed  by  him,  which  makes  a  man 
guilty  of  forgery."     1  Hawk.  c.  70,  §  5. 

If  the  defendant  had  written  upon  the  note,  "William  Schouler  by 
bis  agent  Henry  W.  Baldwin,"  tlie  act  plainly  would  not  have  been 


848  COLVIN    V.    STATE.  [CHAP.  XIII. 

forgery.  The  party  taking  the  note  knows  it  is  not  the  personal  act 
of  8chouler.  He  does  not  rely  upon  his  signature.  He  is  not  deceived 
by  the  semblance  of  his  signature.  He  relies  solely  upon  the  averred 
agency  and  authority  of  the  defendant  to  bind  Scliouler.  So,  in  the 
case  before  us,  the  note  was  executed  in  the  presence  of  the  promisee. 
He  knew  it  was  not  Schouler's  signature.  He  relied  upon  the  defend- 
ant's statement  of  his  authority  to  bind  him  as  partner  in  the  firm  of 
Schouler,  Baldwin  &  Co.  Or  if  the  partnership  had  in  fact  before 
existed  but  was  then  dissolved,  the  effect  of  the  defendant's  act  was 
a  false  representation  of  its  continued  existence. 

In  the  case  of  Regina  v.  White,  1  Denison,  208,  the  prisoner  in- 
dorsed a  bill  of  exchange,  "per  procuration,  Thomas  Tomlinson, 
Emanuel  White."  He  had  no  authority  to  make  the  indorsement, 
but  the  twelve  judges  held  unanimously  that  the  act  was  no  forgery. 

The  7iisi  prius  case  of  Regina  v.  Rogers,  8  Car.  &  P.  629,  has  some 
resemblance  to  the  case  before  us.  The  indictment  was  for  uttering 
a  forged  acceptance  of  a  bill  of  exchange.  It  was  sold  and  delivered 
bv  the  defendant  as  the  acceptance  of  Nicholson  &  Co.  Some  evidence 
was  offered  that  it  was  accepted  by  one  T.  Nicholson  in  the  name  of 
a  fictitious  firm.  The  instructions  to  the  jury  were  perhaps  broad 
enough  to  include  the  case  at  bar,  but  the  jury  having  found  that 
the  acceptance  was  not  written  by  T.  Nicholson,  the  case  went  no 
fu'-ther.  The  instructions  at  nisi  prius  have  no  force  as  precedent,  and 
in  principle  are  plainly  beyond  the  line  of  the  settled  cases. 

The  result  is  that  the  exceptions  must  be  sustained  and  a  new  trial 
ordered  in  the  common  pleas.  It  will  be  observed  however  that  the 
grounds  on  which  the  exceptions  are  sustained  seem  necessarily  to  dis- 
pose of  the  cause.  Exceptions  sustained. 


\  COLVIN   V.   STATE. 

Supreme  Court  of  Indiana.     1858. 

/ 
/  {Reported  n  Ind.Z&\.'\ 

j 

Perkins,  J.     Indictment  for  forgery.     The  offence  charged  consisted 
in  the  uttering,  as  true,  a  false  and  forged  deed  to  a  piece  of  land. 

The  facts  may  be  shortly  stated.  John  Randolph  Brewster  and 
Archibald  R.  Colvin  were  boarding,  with  their  wives,  at  the  house  of 
Jacob  Lesman,  Fort  Wayne,  Indiana.  They  were  destitute  of  money 
to  pay  their  board,  and  their  credit  was  about  expiring.  For  the  pur- 
pose of  "making  a  raise,"  says  the  witness,  they  agreed  to  execute 
deeds  for  an  exchange  of  land.  They  obtained  a  map,  selected  certain 
sections  of  land  in  Iowa  and  Texas,  and  agreed  that  Colvin  should 
\  make  a  deed  to  Brewster  for  those  in  Texas,  and  Brewster  to  Colvin 

for  those  in  Iowa.     They  accordingly  went  before  a  public  oflScer,  and 


CHAP.  XIII. 


COLVIN   V.    STATE.  849 


got  him  to  draw  up  and  take  acknowledgment  of  the  deeds,  talking  at 
the  time  of  the  execution  about  the  amount  to  be  paid  in  cash  by  one  to 
the  other  as  the  difference  in  the  value  of  the  lands,  etc.  Brewster 
executed  his  deed  to  Colvin  in  the  name  of  James  Brewster,  a  name  he 
had  assumed,  for  a  short  time,  at  Fort  Wayne  ;  but  (Jolvin  knew  that 
his  true  name  was  John  Randolph  Brewster. 

This  deed,  so  executed  to  him  by  Brewster,  Colvin  took  to  Lesman, 
uttered  it  as  a  genuine  deed,  and  placed  it  with  him  on  deposit  as  an 
equitable  mortgage  of  the  land,  in  security  for  his  l)oard-bill. 

The  question  is  whether  the  act  constituted  the  crime  of  forgery, 
under  the  following  statute  : 

"  Every  person  who  shall  falsely  make,  or  assist  to  make,  deface, 
destroy,  alter,  forge,  or  counterfeit,"  etc.,  "  any  record,  deed,  will, 
codicil,  bond,"  etc.;  "or  an}'  person  who  shall  utter,  or  publish  as 
true,  an}-  such  instrument,  knowing  the  same,"  etc.,  "with  intent 
to  defraud,"  etc.,  "shall  be  deemed  guilty  of  forgery."  2  R.  S. 
p.  412,  §  30. 

The  deed  was  deposited  for  boarding  already  had,  not  to  secure  the 
price  of  future  boarding ;  nor  did  the  depositor  board,  or,  at  the  time 
of  the  deposit,  intend  to  board  longer  with  Lesman,  as  the  latter  well 
knew. 

The,  indictment  contains  but  a  single  count,  charges  the  uttering  of 
the  deed  to  Lesman,  and  specially  avers  the  intent,  in  so  doing,  to  have 
been  to  defraud  him. 

We  think  the  case  is  not  made  out.     No  fraud  appears  to  have  been 
perpetrated  upon  Lesman.    The  debt  already  existing  was  not  cancelled, 
but  remained  due,  and  the  right  to  enforce  paj'ment  of  it  left  unim 
"paired.     No  new  credit  from  Lesman  was  obtained  upon  the  deed.     He 
was  in  no  worse  situation  after  taking  the  deed  than  before. 
'  Had  Colvin  been  indicted  for  the  forgery,  with  intent  generall}' to y^/^ 
defraud,   such    an   indictment  might,   probably,  have    been  sustained^^ 
against  him.     See  Wilkinson  v.  The  State,  10  Ind.  R.  372. 


850  LASCELLES    V.    STATE.  [CHAP.  XIII. 

COMMONWEALTH    v.    HENRY. 

Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported  118  Mass.  460.] 

Devens,  J.^  The  last  sentence  of  the  instruction  given  b}'  the  judge, 
in  response  to  the  request  of  the  defendant,  "  that  if  the  defendant 
signed  the  name  of  J.  C.  Hill  to  said  note  without  the  authority  of  said 
Hill,  and  jmssed  it  as  the  note  of  J.  C.  Hill,  expecting  to  be  able  to 
meet  it  when  due,  it  would  be  a  forgery,"  would  undoubtedly,  if  it 
stood  alone,  be  a  defective  statement  of  the  law.  But  it  is  not  to  be 
separated  from  the  sentence  which  precedes  it,  which  distinctly  states 
that  there  must  be  an  intent  to  defraud,  and,  as  thus  connected,  the 
obvious  meaning  of  tlie  instruction,  and  so  it  must  have  been  under- 
stood by  the  jury,  was  that  if  the  defendant  signed  the  note  under  the 
circumstances  supposedrtuTending  thereb}-  to  defraud,  this  would  be  a 
forgery,  even  if  lie  expected  to  be  able  to  meet  the  note  when  due. 
Ttie  subject  to  which  the  request  of  the  defendant  was  apparently  in- 
tended to  call  the  attention  of  the  presiding  judge,  was  the  effect  of  his 
possession  of  the  means  and  of  his  intention  to  take  up  the  note  when 
due,  and  in  relation  to  this  the  statement  of  the  law  was  correct.  The 
intention  of  one  who  utters  a  forged  note  to  take  it  up  at  maturity,  and 
the  i)ossession  of  means  which  will  enable  him  to  do  so,  do  not  rebut 
the  inference  of  intent  to  defraud,  which  is  necessarily  drawn  from 
knowinglv  uttering  it  for  value  to  one  who  believes  it  to  be  genuine, 
nor  deprive  the  transaction  of  its  criminal  character.  Commonwealth 
V.  Tenney,  97  Mass.  50. 

JEJxceptions  overruled. 


LASCELLES   v.    STATE. 
Supreme  Court  of  Georgia.     1892. 

[Reported  90  Ga.  347.] 

The  indictment  charged  that  Sidne}-  Lascelles  did  falsely  and  fraud- 
ulentlv  draw,  make  and  forge  a  certain  bill  of  exchange  (setting  it  out) 
in  the  fictitious  name  of  Walter  S.  Beresford,  when  his  real  and  true 
name  was  Sidney  Lascelles,  with  intent  then  and  there  to  defraud 
Hamilton  &  Company,  a  mercantile  house,  etc.  The  bill  of  exchange 
purported  to  be  a  check  for  two  hundred  pounds  on  a  London  bank  in 
favor  of  Hamilton  &  Co.,  signed  "■  Walter  S.  Beresford."  ^ 

^  Only  so  much  of  the  opinion  as  discusses  the  intent  to  defraud  is  given.  — Ed 
'^  Only  so  much  of  the  case  as  discusses  the  question  of  the  signing  by  defendant  of 
a  name  previously  assumed  by  him  is  given.  —  Ed. 


CHAP.   XIII.  j  LASCELLES    V.    STATE.  851 

Lumpkin,  J.  .  .  .  Several  grounds  of  the  motion  for  a  new  trial  are 
based  upon  the  failure  and  refusal  of  the  court  to  charq^e,  in  effect,  that 
if  the  name  signed  by  the  accused,  although  not  his  own,  was  one  which 
he  had  been  accustomed  to  employ  and  under  wliich  he  had  done  busi- 
ness, the  jury  could  not  convict  him.  It  was  insisted  that,  in  order  to 
constitute  forgery,  the  name  must  have  been  assumed  for  the  sole 
purpose  of  defrauding  the  persons  alleged  to  have  been  defrauded. 
We  think  it  immaterial  for  what  purpose  the  name  was  originally 
assumed  and  used,  if  it  is  shown  that  in  the  instance  in  question  it  was 
jised  to  defraud.  It  was  a  fictitious  name,  within  the  meaning  of  the 
statute  (Code,  §  4453),  if  tlie  accused  gave  it  a  fictitious  character 
which  was  calculated  and  intended  to  deceive  b}^  imparting  an  apparent 
value  to  the  writing  which  might  not  otherwise  attach  to  it  in  the  minds 
of  the  persons  with  whom  the  accused  was  dealing.  Where  one  has 
been  accustomed  to  use  a  certain  assumed  name,  it  is  not  to  be  implied 
merely  from  his  signing  such  name  to  a  bill  of  exchange  or  other  writ- 
ing that  the  purpose  is  to  defraud ;  it  is  not  forgery  unless  there  is 
something  else  besides  the  mere  signing  to  sliow  that  the  fictitious 
character  of  the  name  is  in  tliat  instance  an  instrument  of  fraud.  In 
ttie  case  of  Dunn,  1  Leach  C.  C.  57,  and  Reg.  v.  Martin,  49  L.  R., 
C.  C,  244,  cited  for  the  plaintiff  in  error,  there  was  no  sucli  showing 
made.  In  the  present  case,  however,  the  accused,  at  the  time  of  sign- 
ing the  writing,  gave  a  fictitious  character  to  the  name,  upon  the  faith 
of  which  he  induced  the  parties  with  whom  he  was  dealing  to  give 
value  for  the  writing.  According  to  his  representations  to  them,  it 
was  the  name  of  the  son  of  Lord  Beresford,  an  English  nobleman  of 
great  wealth,  who  was  about  to  deposit  in  bank  $25,000  in  the  name  of 
this  son.  When  Mr.  Hamilton  hesitated  aljout  paying  the  money,  the 
accused  said:  "Our  name  can  command  any  amount  of  money  in 
England."  He  not  onlj'  used  an  assumed  name,  but,  in  connection 
with  the  signing  of  the  writing  in  question,  gave  a  fictitious  character 
to  the  name,  and  impersonated  that  character  in  order  to  obtain  money 
upon  the  writing,  which  lie  might  not  have  gotten  if  he  had  simply  rep- 
resented himself  to  be  Walter  S.  Beresford,  or  had  stopped  with  the 
representations  he  had  made  as  to  his  own  wealth,  without  making 
these  additional  representations  as  to  liis  relationship  and  standing. 
The  parties  with  whom  he  was  dealing  paid  over  their  mone^-  to  the 
supposed  son  of  Lord  Beresford,  upon  the  faith  of  a  writing  executed 
b}'  the  accused  in  that  character,  when,  as  it  afterwards  turned  out,  the 
name  used  was  not  his  own  name,  and  Lord  Beresford  had  no  son  of 
the  name  used.  There  being  no  such  son,  it  was  not  a  case  of  person- 
ating another,  as  contemplated  by  section  4596  of  the  code.  It  was 
the  personating  of  a  fictitious  person,  and  this  is  of  the  essence  of  the 
offence  described  in  the  section  upon  which  the  first  count  of  this 
indictment  was  based.     Code,   §  4453. 


852  THE  poulteker's  case.  [chap.  xrv. 


CHAPTER  XIV. 

CRIMINAL    CONSriKACY. 


SECTION    I. 

Under   Ancient   Statutes. 

33  Edw.  I.  Stat.  2  ;  [Ordinance  of  Conspirators.]  Conspirators  be 
thej-  that  do  eonfeder  or  bind  themselves  by  oath,  covenant,  or  other 
alliance,  that  ever}-  of  them  shall  aid  and  bear  the  other  falsel}'  and 
maliciousl}'  to  indict,  or  cause  to  indict,  or  falsely  to  move  or  maintain 
pleas  ;  and  also  such  as  cause  children  within  age  to  appeal  men  of 
felon}',  whereb}-  they  are  imprisoned  and  sore  grieved  ;  and  such  as 
retain  men  in  the  country-  with  liveries  or  fees  for  to  maintain  their 
malicious  enterprises  and  to  drown  the  truth  ;  and  this  extendeth  as 
well  to  the  takers,  as  to  the  givers.  And  stewards  and  bailiffs  of  great 
lords,  which  by  their  seigniory,  office,  or  power,  undertake  to  bear  or 
maintain  quarrels,  pleas,  or  debates  that  concern  other  parties  than 
such  as  touch  the  estate  of  their  lords  or  themselves.  This  ordinance 
and  final  definition  of  conspirators  was  made  and  accorded  by  the  King 
and  his  Council  in  his  Parliament  the  thirty-third  year  of  his  reign. 


THE  POULTERER'S  CASE. 
Star  Chamber.     1611. 

[Reported  9  Coke  5.5  6.] 

Mich.  8  Jac.  Regis,  the  case  between  Stone,  plaintiff,  and  Ralph 
Waters,  Henry  Bate,  J.  Woodbridge,  and  many  other  poulterers  ol 
London,  defendants,  for  a  combination,  confederacy-,  and  agreement 
betwixt  them  falsly  and  maliciously  to  charge  the  plaintiff  (who  had 
married  the  widow  of  a  poulterer  in  Gracechurch  Street)  with  the 
robbery  of  the  said  Ralph  Waters,, supposed  to  be  committed  in  the 
county  of  Essex,  and  to  procure  him  to  be  indicted,  arraigned, 
adjudged,  and  hanged,  and  in  execution  of  this  false  conspiracy,  they 
procured  divers  warrants  of  justices  of  peace,  by  force  whereof  Stone 


SECT.  I.J  THE    poulterer's    CASE.  853 

was  apprehended,  examined,  and  1)ound  to  appear  at  the  assizes  in 
Essex  ;  at  which  assizes  the  defendants  did  ap[)ear  and  preferred  a 
bill  of  indictment  of  robbery  against  the  said  plaintiff;  and  the  justices 
of  assize  hearing  the  evidence  to  the  grand  jur3'  openly  in  court,  ilmy 
perceived  great  malice  in  the  defendants  in  the  prosecution  of  the 
cause  ;  and  upon  the  whole  matter  it  appeared,  that  the  plaintiff  the 
whole  day  that  Waters  was  robbed,  was  in  London,  so  that  it  was 
impossible  that  he  committed  the  robbery,  and  thereupon  the  grand 
inquest  found  ignorajmis.  And  it  was  moved  and  stronglj-  urged  by 
the  defendants'  counsel,  that  admitting  this  combination,  confederac}', 
and  agreement  between  them  to  indict  the  plaintiff  to  be  false,  and 
malicious,  that  yet  no  action  lies  for  it  in  this  court  or  elsewhere,  for 
divers  reasons.  1.  Because  no  writ  of  conspiracy  for  the  party  grieved, 
or  indictment  or  other  suit  for  the  King  lies,  but  where  the  part^' 
grieved  is  indicted,  and  legitirno  modo  acquietatus,  as  the  books  are 
F.  N.  B.  114  b  ;  6  E.  3,  41  a ;  24  E.  3,  34  b  ;  43  E.  3,  Conspiracy  11; 
27  Ass.  p.  59  ;  19  H.  6,  28  ;  21  H.  6,  26  ;  9  E.  4,  12,  &c.  2.  Every  one 
who  knows  himself  guilty  may,  to  cover  their  offences,  and  to  terrify 
or  discourage, those  who  would  prosecute  the  cause  against  them,  sur- 
mise a  confederacy',  combination,  or  agreement  betwixt  them,  and  by 
such  means  notorious  offenders  will  escape  unpunished,  or  at  the  least, 
justice  will  be  in  danger  of  being  perverted,  and  great  offences  smoth- 
ered, and  therefore,  thev  said,  that  there  was  no  precedent  or  warrant 
in  law  to  maintain  such  a  bill  as  this  is.  But  upon  good  consideration, 
it  was  resolved  that  the  bill  was  maintainable  ;  and  in  this  case  divers 
points  were  resolved.^ 

3.  It  is  to  be  observed  that  there  was  means  by  the  common  law 
before  indictment  to  protect  the  innocent  against  false  accusations,  and 
to  deliver  liim  out  of  prison.  .  .  .  And  it  is  true  that  a  writ  of  con- 
spiracy' lies  not,  unless  the  party  is  indicted,  and  legitirno  modo  acquie- 
tatus^ for  so  are  the  words  of  the  writ ;  but  that  a  false  conspiracy' 
betwixt  divers  persons  shall  be  punished,  although  nothing  be  put  in 
execution,  is  full  and  manifest  in  our  books  ;  and  therefore  in  27  Ass. 
p.  44,  in  the  articles  of  the  charge  of  inquir}-  by  the  inquest  in  the 
King's  Bench,  there  is  a  7iota^  that  two  were  indicted  of  confederacy', 
each  of  them  to  maintain  the  other,  whether  their  matter  be  true,  or 
false,  and  notwithstanding  that  nothing  was  supposed  to  be  put  in  exe- 
cution, the  parties  were  forced  to  answer  to  it,  because  the  thing  is 
forbidden  by  the  law,  which  are  the  very  words  of  the  book  ;  which 
proves  that  such  false  confederacy  is  forbidden  by  the  law,  although  it 
was  not  put  in  use  or  executed.  So  there  in  the  next  article  in  the 
same  book,  inquiry  shall  be  of  conspirators  and  confederates,  who 
agree  amongst  themselves,  &c.  falsly  to  indict,  or  acquit,  &c.  the  man- 
ner of  agreement  betwixt  whom,  which  proves  also,  that  confederacy 
to  indict  or  acquit,  although  nothing  is  executed,  is  punishable  b}'  law : 
and  there  is  another  article  concerning  conspiracy  betwixt  merchants, 

1  The  first  two  points,  nut  relating  to  the  Law  of  Conspiracy,  are  omitted. 


854  THE    poulterer's    case.  [chap.  XIV. 

and  in  these  cases  the  conspiracy  or  confederacy  is  punisba])le, 
although  the  conspiracy  or  confederac}'  be  not  executed  ;  and  it  is  lield 
in  19  K.  2,  Brief  926,  a  man  shall  have  a  wilt  of  conspiracy,  although 
the\-  do  nothing  but  cons[)ire  together,  and  he  snail  recover  damages, 
and  they  may  be  also  indicted  thereof.  Also  the  usual  commission  of 
oyer  anil  terminer  gives  power  to  the  commissioners  to  inquire,  &c.  da 
omnibus  coadunutio/iibics,  confa:derationihas,  etfalsis  alligantiis ;  and 
coadunatio  is  a  uniting  of  themselves  together,  confcederatio  is  a  com- 
bination amongst  them,  SiXid  falsa  alHga)dia  is  a  false  binding  each  to 
the  other,  by  bond  or  promise,  to  execute  some  unlawful  act:  in  these 
cases  before  the  unlawful  act  executed  the  law  punishes  the  coaduna- 
tion,  confederacy,  or  false  alliance,  to  the  end  to  prevent  the  unlawful 
act,  quia  quando  aliquid  proliibetur^  prohibetur  et  id  per  quod  perven- 
itur  ad  illitd :  et  affectus  lyunitur  licet  nan  seqiiatur  effectus  ^  and  in 
these  cases  the  common  law  is  a  law  of  mere}',  for  it  prevents  the 
malignant  from  doing  mischief,  and  the  innocent  from  suffering  it. 
Hil.  37  H.  8,  in  the  Star  Chamber  a  priest  was  stigmatized  with  F.  and 
A.  in  his  forehead,  and  set  upon  the  pillory'  in  Cheapside,  with  a 
written  \)ii\)ei\  for  false  accusation.  M.  3  &  4  Ph.  &  Ma.,  one  also  for 
the  like  cause  futt  sticpnaticus  with  F.  &  A.  in  the  cheek,  with  such 
superscription  as  is  aforesaid.  "  Vide  Proverb''  1.  Si  te  lactaverint 
peccatores  et  dixerint,  veni  iiobiscum  ut  insidiemur  sanguini,  abscon- 
damus  tendiculas  contra  iyisontem  frustra,  &c.  omnem  pretiosam  sub- 
stantiam  reperiemus  et  implebimus  domus  nostras  spoliis,  &c.  Fill 
mi,  ne  ambides  cum  e^s,  c&c.  pedes  enim  eorum  ad  malum  currunt,  et 
festinant  %d  effundantsanguinemy  And  afterward  upon  the  hearing  of 
the  case,  and  upon  pregnant  proofs,  the  defendants  were  sentenced 

j  for  the  said  false  confederacy  by  fine  and  imprisonment.  Nota,  reader, 
these  confederacies,  punishable  by  law,  before  they  are  executed,  ought 

I  to  have  four  incidents  :  1.  It  ought  to  be  declared  by  some  manner  of 
prosecution,  as  in  this  case  it  was,  either  b}'  making  of  bonds,  or 
promises  one  to  the  other ;  2.  It  ought  to  be  malicious,  as  for  unjust 
revenge,  &c.  3.  It  ought  to  be  false  against  aa  innocent:  4.  It  ought 
to  be  out  of  court  voluntarilv. 


SECT.  II.]  KEX   V.    EDWAKDS.  855 

SECTION  II. 

Conspiracy/  in  General. 

REX  V.  EDWARDS. 
King's  Bench.     1724. 

[Reported  8  Modern,  320.] 

The  defendants  were  indicted,  for  that  they,  per  conspirationem 
inter  eos  habitam,  gave  the  husband  mone}'  to  marry  a  poor  helpless 
woman,  who  was  an  inhabitant  in  the  parish  of  B.  and  incapable  of 
marriage,  on  purpose  to  gain  a  settlement  for  her  in  the  parish  of  A. 
where  the  man  was  settled. 

It  was  moved  to  quash  this  indictment,  because  it  is  no  crime  to 
marry  a  woman  and  give  her  a  portion  ;  and  the  justices  are  not  proper 
judges  what  woman  is  capable  of  a  husband,  neither  have  thej'  any 
jurisdiction  ia  conspiracies. 

It  was  insisted  on  the  other  side,  that  there  is  a  crime  set  forth  in 
this  indictment,  which  is  a  conspiracy  to  charge  a  parish,  &c.  and  a 
conspiracy  to  do  a  lawful  act,  if  it  be  for  a  bad  end,  is  a  good  founda- 
tion for  an  indictment.  An  indictment  for  a  conspiracy  to  charge  a 
man  to  be  the  father  of  a  bastard-child,  was  held  good,  Temberley  v. 
Child,  1.  Sid.  68.  s.  c.  1  Lev.  62;  Rex  v.  Armstrong,  1  Vent.  304, 
thougli  fornication  is  a  spiritual  offence  ;  because  the  Court  of  King's 
Bench  has  cognizance  of  ever}'  unlawful  act  b}'  which  damages  may 
ensue.  So  an  information  for  a  conspiracy  to  impoverish  the  farmers 
of  the  excise,  was  held  good. 

To  which  it  was  answered,  that  those  were  conspiracies  to  do  unlaw- 
ful acts  ;  but  it  was  a  good  act  to  provide  a  husband  for  this  woman. 

The  Court.  The  quashing  indictments  is  a  discrotionarj"  power  of 
the  court,  but  in  this  case  the  defendant  has  not  showed  anything  to 
induce  the  court  to  quash  the  indictment ;  and  if  the  matter  be  doubt- 
ful, the  defendant  must  plead  or  demur  ;  but  indictments  for  conspira- 
cies are  never  quashed.— ^A_bflj:£._.conspiracy  to  do  a  lawful  act  to  an 
unlawful  end,  is  a  crime,  though  no  act  be  done  in  consequence 
^hereof.  Reg."  r.  Best,  2  Ld.  Ray.  1167;  s.  c.  6  Mod.  185;  but  if  the 
fault  in  the  indictment  be  plain  and  apparent,  it  is  quashed  for  that 
reason,  and  the  party  shall  not  be  put  to  the  trouble  to  plead  or  demur. 
Suppose  there  is  a  conspiracy'  to  let  lands  of  ten  pounds  a  year  value 
to  a  poor  man,  in  order  to  get  him  a  settlement,  or  to  make  a  certificate 
man  a  parish-officer,  or  a  conspiracy  to  send  a  woman  big  of  a  bastard- 
child  into  another  parish  to  be  delivered  there,  and  so  to  charge  that 
parish  with  the  child  ;  certainly  these  are  crimes  indictable.  But  in 
this  indictment  it  is  not  set  forth,  that  the  woman  was  likely  to  be 


856  REX   V.    TURNER.  [CHAP.  XIV. 

chargeable  to  the  parish.  As  to  the  objection,  that  the  sessions  liave 
no  jurisdiction  in  conspiracy,  the  contrary  is  true  ;  they  have  no  juris- 
diction in  perjury  at  common  law,  but  by  the  statute  they  have  ;  and 
they  have  no  jurisdiction  to  indict  for  forgery,  but  certainly  they  have 
jurisdiction  de  conspirationibus,  Rex  v.  Rispal,  3  Burr.  1320  ;  and  such  a 
person  as  this  defendant  is  was  punished  by  indictment  at  common  law.^ 
But  in  the  Triuitv  Term  following  judgment  was  given  for  the 
defendant,  because  it  was  not  averred  in  the  indictment,  that  the 
woman  was  last  legally  settled  in  the  parish  of  B.,  but  only  that  she 
was  an  inhabitant  there. 


REX  V.  TURNER. 
^        King's  Bench.     1811. 

[Reported  13  East,  228.] 

This  was  an  indictment  for  a  conspiracy,  which  stated  that  the 
defendants  unlawfully  and  wickedly  devising  and  intending  to  injure, 
oppress,  and  aggrieve  T.  Goodlake,  of  Letcombe  Regis  in  the  county 
of  Berks,  Esquire,  on  the  24th  of  November,  50th  Geo.  3,  with  force 
and  arms,  at  East  Challow  in  the  county  aforesaid,  unlawfull}'  and 
wickedly  did  conspire,  combine,  confederate,  and  agree  together,  and 
with  divers  other  persons  unknown,  to  go  into  a  certain  preserve  for 
iiares  at  Letcombe  Regis  aforesaid,  in  the  county  aforesaid,  belonging 
to  the  said  T.  G.,  without  the  leave  and  against  the  will  and  consent 
t)f  the  said  T.  G.,  to  snare,  take,  kill,  destroy,  and  carrj'  away  the 
hares  in  the  said  preserve  then  being,  and  to  procure  divers  bludgeons 
and  other  offensive  weapons,  and  to  go  to  the  said  preserve  armed 
therewith  for  the  purpose  of  opposing  any  persons  who  should 
endeavor  to  apprehend  or  obstruct  or  prevent  them  in  and  from  carry- 
ing into  execution  their  unlawful  and  wicked  purposes  aforesaid  ;  and 
'Jiat  the  said  defendants,  in  pursuance  of  and  according  to  the  conspir- 
acy, combination,  confederac}',  and  agreement  aforesaid,  so  as  afore- 
said before  had,  afterwards,  to  wit,  on  the  said  da}",  &c.,  about  the 
hour  of  12  in  the  night  of  the  same  day,  with  force  and  arms,  at  East 
Challow  aforesaid,  in  the  county  aforesaid,  unlawfully  and  wickedly 
did  procure  divers  large  bludgeons,  and  other  offensive  weapons,  and 
did  go  to  the  said  preserve  of  the  said  T.  G.  armed  therewith,  for  the 
purpose  of  opposing  any  persons  who  should  endeavor  to  apprehend, 
obstruct,  or  prevent  them  in  and  from  carrying  into  execution  their 
unlawful  and   wicked  purposes  aforesaid.     And  the  said  defendants, 

1  It  is  said,  s.  c.  1  Sess.  Cases,  336,  that  the  court  left  the  defendants  to  demur  or 
plead  to  it,  as  they  should  think  fit;  and  s.  c.  1  Stra.  707,  that  on  a  demurrer  to  this 
indictment,  judgment  was  given  for  the  defendant,  because  it  is  not  an  offence 
indictable. 


SECT.  II.]  REX    V.    TURNEE.  857 

being  so  armed  as  aforesaid,  in  fnrther  execution  of  their  unlawful  and 
wicked  purposes  aforesaid,  then  and  there  did  set  divers,  to  wit,  100 
snares,  for  the  purpose  and  with  the  intent  to  take,  kill,  destroy,  and 
carry  awaj'  the  hares  in  the  said  preserve  then  being ;  in  contempt  of 
the  king  and  his  laws,  to  the  evil  example  of  otliers,  to  the  great 
damage  of  the  said  T.  G.,  and  against  the  peace,  etc. 

After  a  verdict  of  guilty,  it  was  moved  in  the  last  term,  b}'  Jerris,  to 
arrest  the  judgment  for  the  insufficiency  of  the  charge,  which  was  only 
that  of  an  agreement  to  commit  a  mere  trespass  upon  propert}',  and  to 
set  snares  for  hares,  and  was  not  an  indictable  offence,  but  at  most 
only  an  injury  of  a  private  nature,  proliibited  sub  modo,  under  a  pen- 
alty. And  2  Hawk.  P.  C.  c.  25,  s.  4,  was  referred  to.  Another 
objection  was  taken,  that  the  place  where  the  offence  was  conimitted 
was  not  alleged  with  sufficient  certainty  and  precision. 

Gleed  now  opposed  the  rule,  and  endeavored  to  sustain  the  indict- 
ment upon  the  authority  of  2  Hawk.  P.  C.  c.  72,  s.  2,  where  it  is  said 
that  all  confederacies  whatsoever  wrongfully  to  prejudice  a  third  per- 
son are  highly  criminal  at  common  law  ;  as  where  several  confederate 
to  maintain  one  another  in  an}-  matter  whether  it  be  true  or  false.  The 
cases  also  sliow  that  it  is  equally  an  offence  to  combine  to  do  a  lawful 
act  b}'  unlawful  means,  or  to  an  unlawful  end,  as  to  do  an  act  in  itself 
unlawful ;  as  in  the  instance  of  workmen  conspiring  together  to  raise 
their  wages,  The  King  v.  The  Journeymen  Tailors  of  Cambridge,  8 
Mod.  11,  or  parish  officers  conspiring  to  marr\'  a  helpless  pauper  into 
another  parish,  to  settle  her  there  and  rid  themselves  of  her  mainte- 
nance, The  King  r.  Edwards  and  Others,  8  Mod.  320.  And  in  all 
cases  of  unlawful  conspiracy,  the  mere  unlawful  agreement  to  do  the 
act,  though  it  be  not  afterwards  executed,  constitutes  the  offence ; 
according  to  Rex  v.  Armstrong  and  Others,  1  Ventr.  304.  and  Rex  v. 
Rispal,  3  Burr.  1320,  and  1  W.  Black.  368.  In  this  latter  case  the 
indictment  for  conspiring  to  charge  a  man  with  a  false  fact,  and 
exacting  money  from  him  under  pretence  of  stifling  the  charge,  was 
sustained  ;  though  the  fact  imputed,  which  was  mereh'  that  of  taking 
hair  out  of  a  bag  belonging  to  the  defendant  Rispal,  did  not  import  in 
itself  to  be  any  offence.  [Lord  Ellenborough,  C.  J.  All  the  cases  in 
conspiracy  proceed  upon  the  ground  that  the  object  of  the  combination 
is  to  be  effected  by  some  falsit}' ;  insomuch  that  in  Tailor  and  Tow- 
lin's  case  in  Godb.  444,  it  was  held  necessary  in  conspiracy'  to  allege 
the  matter  to  \)Q  false  et  malitiose.  B}'  the  old  law  indeed  the  offence 
was  considered  to  consist  in  imposing  b}'  combination  a  false  crime 
upon  a  person.  But  are  you  prepared  to  show  that  two  unqualified 
persons  going  out  together  b}'  agreement  to  sport  is  a  public  offence?] 
Modern  cases  have  carried  the  offence  further  than  some  of  the  old 
authorities,  such  as  The  King  v.  Eccles  and  Others,  where  the  defend- 
ants were  convicted  upon  a  charge  of  conspiring  together  by  indirect 
means  (not  stating  what  those  means  were)  to  prevent  a  person  from 
carrying  on  his  trade.     And  in  The  King   v.  Spragge  and  Others,   2 


858  REX   V.   PYWELL.  [CHAP.   Xi  7. 

Burr.  993,  which  charged  the  defendants  with  a  conspiracy  to  indict 
and  prosecute  W.  G.  for  a  crime  liable  by  law  to  be  capitally  pun- 
ished, and  that  in  pursuance  of  such  conspiracy  they  did  afterwards 
indict  him  ;  one  of  the  objections  was,  that  the  charge  was  onlv  of  a 
conspiracy  to  indict,  not  of  a  conspiracy-  to  indict  falsely  ;  but  it  was 
overruled. 

Lord  P^llenbokough,  C.  J.  That  was  a  conspirac}-  to  indict  another 
of  a  capital  crime  ;  which  no  doubt  is  an  offence.  And  the  case  of 
The  King  v.  Eccles  and  Others  was  considered  as  a  conspiracy  in 
restraint  of  trade,  and  so  far  a  conspiracy  to  do  an  unlawful  act  affect- 
ing tlie  public.  But  I  should  be  sorry  that  the  cases  in  conspiracy 
against  individuals,  which  have  gone  far  enough,  should  be  pushed  still 
farther :  I  should  be  sorry  to  have  it  doubted  whether  persons  agree- 
ing to  go  and  sport  upon  another's  ground,  in  other  words,  to  commit 
a  civil  trespass,  should  be  thereby  in  peril  of  an  indictment  for  an 
offence  which  would  subject  them  to  infamous  punishment. 

Per  Curiam.  Rule  absolute? 


REX   V.   PYWELL, 
Westminster  Sittings.     1816. 

[Reported  1  Starkie,  402.] 

This  was  an  indictment  against  the  defendants  for  a  conspiracy  to 
cheat  and  defraud  General  Maclean,  by  selling  him  an  unsound  horse. 

It  appeared  that  the  defendant  Pywell  had  advertised  the  sale  of 
horses,  undertaking  to  warrant  their  soundness.  Upon  an  a[)i)licalion 
by  General  Maclean  at  Pywell's  stables,  Budgery,  another  of  the  de- 
fendants, stated  to  him  that  he  had  lived  with  the  owner  of  a  horse 
which  was  shown  to  him,  and  that  he  knew  the  horse  to  be  perfectly 
sound,  and  as  the  agent  of  Pywell,  he  warranted  him  to  be  sound. 
General  INIaclean  purchased  the  horse,  and  took  the  following  receipt : 

"•  Received  of Maclean,  Esq.,  the  sum  of  fifty  guineas,  for  a  geld- 
ing warranted  sound,  to  be  returned  if  not  approved  of  within  a  week." 

1"  After  the  most  careful  and  elaborate  consideration  of  the  cases,  I  am  satisfied 
that  Rex  r.  Turner  is  not  law."  I^oud  Campbell,  C.  J.,  in  Reg.  v.  RovvUinds,  5  Cox 
436,  490.  "The  King  r.  Turner,  13  East,  231,  to  say  the  least  of  it,  is  an  odd  case. 
Confederates  armed  with  clubs  to  beat  down  opposition,  entered  a  man's  preserve  in 
the  night  to  take  and  carry  away  his  hares;  and  Lord  Ellenborough  called  this  'an 
agreement  to  go  and  sport  on  another's  ground,'  in  other  words,  '  to  commit  a  civil 
trespass'!  It  would  be  a  curious  thing  to  know  what  he  would  iiave  called  an  agree- 
ment to  steal  a  man's  pigs  or  to  rob  his  henroost.  In  its  mildest  aspect,  the  entry  into 
the  preserve  with  bludgeons  was  a  riot,  which,  it  appears  by  a  note  in  the  second  vol- 
ume of  Mr.  Chitty's  Criminal  Law,  page  506,  may  be  a  subject  of  conspiracy." 
Gibson.  C.  J.,  in  Mifflin  v.  Com.,  5  W.  &  S.  461.  463. — Ed. 


SECT.  II.]  EEjGI.NA   V.    WAUliUUTON.  859 

It  was  discovered,  very  soon  after  the  sale,  that  the  animal  was 
nearly  worthless.  The  prosecutors  were  proceeding  to  give  evidence 
of  the  steps  taken  to  return  the  gelding,  when  — 

Lord  Ellenborougu  intimated  that  the  case  did  not  assume  the 
shape  of  a  conspiracy  ;  tlie  evidence  would  not  warrant  any  i)roceediug 
be}  ond  that  of  an  action  on  the  warranty,  for  the  breach  of  a  civil  con< 
tract.  If  this  (lie  said)  were  to  be  considered  to  be  an  indictable 
offence,  then  instead  oi'  all  the  actions  which  had  been  brought  on  war- 
ranties, the  defendants  ought  to  have  been  indicted  as  cheats.  And 
that  no  indictment  in  a  case  like  this  could  be  maintained,  without 
evidence  of  concert  between  the  parties  to  effectuate  a  fraud. 

The  defendants  were  accordingly  acquitted. 

The  Attorney-  General  and  Andrews  for  the  prosecution. 

Nolan  and  Spankie  for  the  defendants. 


REGINA   V.   WARBURTON. 
Crown  Case  Reserved.     1870. 

[Reported  L.  R.  1  C.  C.  R.  274.] 

Case  stated  by  Brett,  J. :  — 

Indictment,  amongst  other  counts,  that  the  prisoner  had  unlawfL^Uy 
conspired  with  one  Joseph  Warburton  and  one  W.  li.  Pepys,  by  divers 
subtle  means  and  devices,  to  cheat  and  defraud  the  prosecutor,  8.  C. 
Lister. 

At  the  trial  at  the  summer  assizes,  in  1870,  for  the  West  Riding  of 
Yorkshire,  at  Leeds,  it  was  found  that  the  prisoner  and  Lister  w(!re 
In  1864  in  partnership,  and  carried  on  a  part  of  the  partnership  busi- 
ness at  Urbigau,  in  Saxony,  by  there  selling  patent  machines  ;  that  the 
prisoner  had  given  notice  according  to  the  terms  of  tlie  partnership 
agreement  for  a  dissohition  of  the  partnership  between  himself  and  Lis- 
ter;  and  that  upon  such  dissolution  an  account  was  to  be  taken  accord- 
ing to  the  partners!ii|)  agreement  of  the  partnership  property,  and  that 
according  to  it  such  property'  would  be  divided  on  such  dissolution  in 
certain  proportions  between  the  prisoner  and  Lister  after  payment  of 
partnership  liabilities  ;  and  that  the  prisoner,  in  order  to  cheat  Lister, 
had  agreed  with  his  brother,  Josepii  Warburton,  who  managed  the 
partnership  business  at  Urbigau,  and  with  Pepys,  who  resided  at  Co- 
logne, to  make  it  appear  by  documents,  purporting  to  have  passed 
between  Pepys  and  Joseph  Warburton,  and  by  entries  in  the  partner- 
ship books  or  accounts,  made  under  the  superintendence  of  Joseph 
Warburton,  that  Pepys  was  a  creditor  of  the  firm  for  moneys  advanced  ; 
and  that,  b}'  reason  of  such  documents  and  entries,  certain  partnership 
property'  was  to  be  withdrawn  and  to  bo  handed  to  Pepys  or  otherwise 


<S60  REGINA   V.   WARBURTON.  [CHAP.  XIV. 

abstracted  or  kept  back  so  as  to  be  divided  between  the  prisoner  and 
Joseph  Warburton  and  Pepys,  to  the  exckision  of  Lister  from  any  inter- 
est or  advantage  in  or  from  or  in  respect  of  it. 

The  jur}',  upon  this  evidence,  found  the  prisoner  guilty  of  the  con- 
spirac}'  charged,  and  rightly  so  found  if  in  point  of  law  such  an  agree- 
ment made  by  a  partner  with  such  an  intent  to  defraud  his  partner  of 
partnership  propert}'  and  to  exclude  him  entirel}-  from  an}'  interest  in 
or  advantage  from  it  on  such  an  occasion,  that  is  to  sa^',  on  the  taking 
of  an  account  for  the  purpose  of  dividing  the  partnership  pi'opert}'  on  a 
dissolution  of  the  partnership,  by  means  of  false  entries  in  the  partner- 
ship books,  and  false  documents  purporting  to  have  passed  with  a  sup- 
posed creditor  of  the  firm,  is  a  conspirac}'  for  which  a  prisoner  can  be 
criminall}-  convicted. 

The  offence,  if  it  were  one,  was  fully  completed  before  the  passing 
of  31  &  32  Vict.  c.  116,  bv  which  a  partner  can  be  criminally  convicted 
for  feloniously-  stealing  partnership  property. 

The  question  for  the  opinion  of  the  court  was  whether  the  verdict 
could  be  sustained  so  as  to  support  a  conviction  for  conspiracy'  in  point 
of  law. 

Waddy  (  W/dtaker  with  him)  for  the  prisoner.  To  constitute  a  con- 
spiracv  there  must  be  an  agreement  to  do  an  illegal  act  or  to  do  a  legal 
act  bj'  illegal  means.  See  Russell  on  Crimes,  4th  ed.  vol.  iii.  p.  116. 
Here  the  acts  agreed  upon,  although  doubtless  immoral,  are  not  illegal. 
If  the  agreement  had  been  carried  out,  the  prisoner  could  not  have 
been  sued  at  law  b}'  Lister,  nor  could  he  have  been  indicted  for  doing 
the  agreed  acts.  Lindle}'  on  Partnership,  2d  ed.  vol.  ii.  p.  856.  It  is 
not  an  indictable  offence  for  one  partner  to  obtain  some  of  the  partner- 
ship money  from  the  other  partners  b}'  means  of  a  fraudulent  misstate- 
ment of  existing  facts.  Reg.  v.  Evans,  Leigh  &  Cave,  252  ;  32  L.  J. 
(M.  C.)  88.  The  acts  contemplated  by  the  agreement  were,  therefore, 
neither  actionable  nor  criminal. 

[CocKBURN,  C  J.  Even  assuming  that  no  action  or  indictment  would 
lie  for  such  acts,  the  acts  are  wrongful  nevertheless,  and  there  is  a 
remedv,  viz.,  by  proceedings  in  equity.] 

An  act  which  merely  gives  a  right  to  proceed  in  equity  is  not  an 
illegal  act  within  the  meaning  of  the  definitions  of  conspirac}'. 

Maule^  Q.  C.  {Nathan  with  him),  for  the  prosecution  was  not  called 
upon. 

CocKBURN,  C.  J.  It  has  been  doubted  sometimes  whether  the  law  of 
England  does  not  go  too  far  in  treating  as  conspiracies  agreements  to 
do  acts  which,  if  done,  would  not  be  criminal  offences.  This  ques- 
tion does  not,  however,  arise  here,  as  no  one  would  wish  to  restrict  the 
law  so  that  it  should  not  include  a  case  like  the  present.  It  is  sufficient 
to  constitute  a  conspiracy  if  two  or  more  persons  combine  by  fraud  and 
false  pretences  to  injure  another.  See  Russell  on  Crimes,  4th  ed. 
vol.  iii.  p.  116.  It  is  not  necessary  in  order  to  constitute  a  conspiracy 
that  the  acts  agreed  to  be  done  should  be  acts  which  if  done  would  be 


SECT,  n,]  COMMONWEALTH    V.   PRIUS.  861 

criminal.  It  is  enough  if  the  acts  agreed  to  be  done,  although  not 
criminal,  are  wrongful,  i.  e.,  amount  to  a  civil  wrong.  Here  there  was 
undoubtedly'  an  agreement  with  reference  to  the  division  of  the  partner- 
ship property  or  of  the  partnership  profits.  It  is  equally  clear  that  tlie 
agreement  was  to  commit  a  civil  wrong,  because  the  agreement  was  to 
deprive  the  prisoner's  partner  by  fraud  and  false  pretences  of  liis  just 
share  of  the  property  or  profits  of  the  partnership.  A  ci\il  wrong  was 
therefore  intended  to  Lister.  The  facts  of  this  case  thus  fall  within 
the  rule  that  when  two  fraudulently  combine,  the  agreement  may  be 
criminal,  although  if  the  agreement  were  carried  out  no  crime  would  be 
committed,  but  a  civil  wrong  only  would  be  inflicted  on  a  third  part}'. 
In  this  case  the  object  of  the  agreement  was,  perhaps,  not  criminal. 
It  is  not  necessar}'  to  decide  whether  or  not  it  was  criminal ;  it  was, 
however,  a  conspiracy,  as  the  object  was  to  commit  a  civil  wrong  by 
fraud  and  false  pretences,  and  I  think  that  the  conviction  should  be 
affirmed. 

Channell  and  Cleasby,  BB.,  Keating  and  Brett,  JJ.,  concurred. 

Conviction  affirmed. 


COMMONWEALTH   v.    PRIUS. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  9  Gray,  127.] 

The  second  count  of  this  indictment  alleged  that  the  defendants,  on 
the  1st  of  March,  1856,  owning  a  stock  of  goods  in  Lowell  as  partners, 
and  having  insurance  thereon  against  fire  by  certain  insurance  com- 
panies named  in  the  indictment,  amounting  in  all  to  the  sum  of  $10,000, 
"did  then  and  there  corruptly,  wickedly,  and  unlawfully  confederate, 
agree,  combine,  and  conspire  together,  to  insure  and  cause  to  be  in- 
sured on  said  stock"  certain  other  sums,  amounting  to  $10,000  more, 
in  other  companies  named,  "  by  then  and  there  falsely  pretending  that 
said  stock  so  by  said  firm  kept  and  used  in  their  said  business  was  then 
and  there  of  a  nnich  greater  value  tlian  twenty  thousand  dollars  ;  and 
as  a  part  of  said  unlawful  agreement'"  the  defendants  "  did  then  and 
there  corruptly,  wickedly,  and  unlawfully-  confederate,  agree,  combine, 
and  conspire  together  to  obtain  from  all  said  insurance  companies  aa 
and  for  a  loss  to  a  large  amount,  to  wit,  twenty  thousand  dollars,  b^' 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,  with  de- 
sign,  under  pretence  of  a  loss,  to  cheat  and  defraud  all  said  insurance 
companies  and  each  one  of  them  of  their  mone^-s  by  means  of  said 
false  pretences  ;  against  the  peace  of  said  Commonwealth,  and  contrarj 
to  the  form  of  the  statute  in  such  case  made  and  provided." 

The  defendants,  being  convicted  in  the  Court  of  Common  Pleas  on 
this  count,  moved  in   arrest  of  judgment,  that  no  offence  was  alleged 


862  SMITH    V.    PEOPLE.  [CHAP.  XIV. 

therein.  Sanger,  J.,  overruled  the  motion,  and  the  defendants  alleged 
exceptions. 

2\  Wentworth  &  P.  Haggerty,  for  the  defendants. 

J.  H.  Clifford  (Attorney-General),  for  the  Commonwealth. 

BiGELOAV,  J.  The  second  count  in  the  indictment,  on  which  alone 
the  defendants  were  found  guilt}-,  is  fatally  defective.  It  was  not  a 
crime  in  the  defendants  to  procure  an  over-insurance  on  their  stock  in 
trade.  It  was  at  most  only  a  civil  wrong.  The  charge  of  a  conspiracy 
to  do  so  does  not  therefore  amount  to  a  criminal  offence.  It  was  not  a 
combination  to  effect  an  unlawful  purpose,  and  no  unlawful  means  by 
which  the  purpose  was  to  be  effected  are  set  out  in  the  indictment. 

The  residue  of  the  count  is  too  uncertain  and  indefinite  to  support  a 
conviction.  It  amounts  to  nothing  more  than  an  allegation  of  a  con- 
spiracy to  cheat  and  defraud  the  insurance  companies,  which  is  clearly 
insufficient.  Commonwealth  r.  Shedd,  7  Cush.  514.  The  means  by 
which  this  purpose  was  to  be  effected  are  not  stated  with  such  precision 
and  certainty  as  to  show  that  they  were  unlawful.  The  false  pretences 
by  which  money  was  to  be  o.btained  from  the  insurance  companies  are 
not  set  out;  and  the  charge  of  a  conspiracy  '•'■to  obtain  monej'  by 
means  of  false  pretences  of  a  loss  thereafterward  to  happen,"  is  alto- 
gether too  general  and  vague  a  statement  to  come  within  the  rules  of 
criminal  pleading.^  Judgment  arrested 


SMITH   V.   PEOPLE. 
Supreme  Court  of  Illinois.     1860. 

[Reported  25  Illinois,  17.] 

This  indictment,  filed  at  the  April  Term,  a.  d.  1860,  of  the  Re- 
corder's Court,  of  the  city  of  Chicago,  contains  two  counts  for 
conspirac}-. 

The  first  count  charges,  that  Charles  H.  Schwab,  John  B.  Smith,  and 
Mary  C.  Allen,  on  the  first  day  of  March,  a.  d.  1860,  at  Chicago,  did, 
between  themselves,  unlawfully  conspire,  combine,  confederate,  and 
agree  together,  wickedl}',  knowingly,  and  designedly,  to  procure,  by  false 
pretences,  false  representations,  and  other  fraudulent  means,  one  Lizzie 
M.  Engles  to  have  illicit  carnal  connection  with  a  man,  to  wit,  with 
the  said  Charles  H.  Schwab,  one  of  the  defendants  aforesaid. 

The  second  count  charges,  that  the  defendants  did,  then  and  there, 
(on  the  same  da}')  unlawfully  between  themselves,  combine,  confederate, 
and  agree  together  wickedly,  knowingly,  and  designedly,  to  cause  and 
procure,  by  false  pretences,  false  representations,  and  other  fraudulent 
means,  one  Lizzie  M.  Engles,  then  and  there  a  minor  female  child,  of 

1  But  see  Com.  v.  Fuller,  1.32  Mass.  563.  —  Ed. 


SECT.  II.]  SMITH   V.   PEOPLE.  863 

the  age  of  sixteen,  to  have  illicit  carnal  connection  with  a  man,  io  wit, 
with  the  aforesaid  Charles  II.  Schwab. 

To  this  indictment  the  plaintiffs  in  error  pleaded  not  guilty,  in  proper 
person.^ 

The  jury  returned  witli  a  verdict  of  guilty  as  to  all  of  the  defendants. 
And  the  defendants  Smith  and  Schwab  moved  in  arrest  of  judgment, 
which  motion  was  overruled.  The  liecorder  then  proceeded  to  sentence 
defendants  Smith  and  Schwab  each  to  the  City  Bridewell,  for  the  term 
of  six  months,  or  to  pay  a  fine  of  SlOO,  and  one-third  costs  of  prosecu- 
tion, and  the  defendant  Allen  to  be  imprisoned  in  the  City  Bridewell 
three  months. 

The  errors  assigned  were  that :  There  is  no  indictable  offence  set 
forth  in  the  indictment.  The  court  erred  in  refusing  to  arrest  the 
judgment.- 

Caton,  C.  J.  To  attempt  to  define  the  limit  or  extent  of  the  law  of 
coiispirac}',  as  deducible  from  the  English  decisions,  would  be  a  difficult 
if  not  an  impracticable  task,  and  we  shall  not  attempt  it  at  the  present 
time.  We  may  safel3'  assume  that  it  is  indictable  to  conspire  to  do' an 
unlawful  act  by  an}'  means,  and  also  that  it  is  indictable  to  conspire  to 
do  any  act  b}'  unlawful  means.  In  the  former  case  it  is  not  necessary 
to  set  out  the  means  used,  while  in  the  latter  it  is,  as  they  must  be 
sliown  to  be  unlawful.  But  the  great  uncertainty,  if  we  may  be  allowed 
the  expression,  is  as  to  what  constitutes  an  unlawful  end,  to  conspire 
to  accomplish  which  is  indictable  without  regard  to  the  means  to  be 
used  in  its  accomplishment.  And  again,  what  means  are  unlawful  to 
accomplish  a  purpose  not  in  itself  unlawful.  As  this  indictment  falls 
under  the  first  class,  we  shall  confine  ourselves  to  that.  If  the  term 
unlawful  means  criminal,  or  an  offence  against  the  criminal  law,  and  as 
such  punishable,  then  the  objection  taken  to  this  indictment  is  good, 
for  seduction  by  our  law  is  not  indictable  and  punishable  as  a  crime. 
But  by  the  common  law  governing  conspiracies  the  term  is  not  so 
limited,  and  numerous  cases  are  to  be  found  where  convictions  have 
been  sustained  for  conspiracy  to  do  unlawful  acts,  although  those  acts 
arc  not  punishable  as  crimes.  Nor  3-et  would  it  be  quite  safe  to  say 
that  the  term  unlawful  as  here  used  includes  ever}'  act  which  violates 
the  legal  rights  of  another,  giving  that  other  a  right  of  action  for  a  civil 
remedy.  And  we  are  not  now  prepared  to  say  where  the  line  can  be 
safely  drawn.  It  is  sufficient  for  the  present  case,  to  say  that  conspira- 
cies to  accomplish  purposes  which  are  not  by  law  punishable  as  crimes, 
but  which  are  unlawful  as  violative  of  the  rights  of  individuals,  and  for 
which  the  civil  law  will  afford  a  remedy  to  the  injured  party,  and  will 
at  the  same  time  and  by  the  same  process  punish  the  offender  for  the 
wrong  and  outrage  done  to  society,  by  giving  exemplary  damages, 
beyond  the  damages  actually  proved,  have  in  numerous  instances  been 
sustained  as  common  law  offences.    The  law  does  not  punish  criminally 

1  The  evidence  and  requests  to  charge  are  omitted. 
■^  The  otlier  assignments  of  error  are  omitted. 


864  SMITH   V.    PEOPLE.  [CHAP.  XIV. 

every  unlawful  act,  although  it  may  be  a  grievous  offence  to  societ}'. 
And  in  determining  what  sort  of  conspiracies  may  or  may  not  be 
entered  into  without  committing  an  offence  punishable  b}'  the  common 
law,  regard  must  be  had  to  the  influence  which  the  act,  if  done,  would 
actually  have  upon  society,  without  confining  the  inquiry  to  the  question 
whether  the  act  might  itself  subject  the  offender  to  criminal  punishment. 
And  most  prominent  among  the  acts  branded  as  unlawful,  although  not 
punishable  as  crimes,  is  the  \evy  act,  to  accomplish  which  this  con- 
spiracy' is  charged  to  have  been  entered  into.  It  is  more  destructive 
of  the  happiness  of  individuals  and  of  the  well-being  of  society,  than 
very  many  others  which  are  punishable  as  crimes,  and  the  law  has  ever 
favored  its  punishment  bj'  exemplar}'  damages  to  the  parent,  guardian 
or  master  of  the  victim  of  seduction,  although  he  is  often  regarded  as 
the  injured  party  by  the  merest  technicality.  To  sa}'  that  it  is  innocent, 
or  not  a  crime,  for  parties  to  band  and  conspire  together  to  accomplish 
the  destruction,  by  seduction,  of  any  young  girl  in  the  communitj',  un- 
less it  can  be  shown  that  the  means  to  be  used  are  unlawful,  and  then 
hold  that  such  unlawful  means  must  of  themselves  be  criminal  and  pun- 
ishable as  such,  would  be  giving  a  legal  sanction  and  encouragement  to 
such  conspiracies.  Under  such  decisions  the  courts,  instead  of  being 
the  guardians  of  the  peace  and  happiness  and  well-being  of  society, 
would  lend  their  sanction  to  its  worst  enemies.  If  there  be  any  act 
which  should  be  regarded  as  unlawful  in  the  sense  of  the  law  of  con- 
spiracy, but  which  is  not  punishable  as  a  crime,  it  is  this  very  act,  and 
so  it  has  been  and  ever  should  be  regarded  by  the  courts.  We  do  not 
hesitate  to  hold  that  a  conspiracy  to  accomplish  such  an  object  as  this, 
whether  the  means  to  be  used  be  unlawful  or  criminal  or  not,  is  a  crime 
at  the  common  law,  and  that  it  is  the  duty  of  the  courts  to  protect 
societ}'  against  such  conspiracies  b}'  their  punishment.  If  the  laws  of 
the  land  will  not  afford  such  protection,  then  individuals  will  protect 
themselves  by  violence,  for  it  is  not  in  human  nature  to  let  such 
offences  go  unpunished  in  some  wa}'.  Counsel  sa}',  in  argument,  that 
if  we  sustain  this  conviction  no  man  in  communit}'  can  repose  in  secu- 
rity'. We  answer,  no  man  who  will  enter  into  a  conspiracy  to  accom- 
plish so  nefarious  a  purpose  as  this,  should  be  allowed  to  repose  in 
securit}' ;  and  if  parties  who  thus  offend  are  allowed  to  do  so,  then 
innocent  and  useful  members  of  society  cannot.  We  hold  that  it  was 
not  necessary  to  show  that  the  means  to  be  used  by  the  conspirators 
were  unlawful  or  criminal. 

The  objection  tliat  this  being  but  a  common  law  offence,  is  not  pun- 
ishable in  this  State,  where  we  have  a  criminal  code  defining  most 
criminal  offences  and  prescribing  their  punishment,  is  answered  b}*  the 
case  of  Johnson  v.  The  People,  22  III.  314.  It  is  there  shown,  that 
our  criminal  code  prescribes  punishment  for  offences  not  enumerated, 
which  can  mean  nothing  but  common  law  offences,  showing  conclusively' 
that  it  was  not  the  intention  of  the  legislature  to  repeal  that  portion  of 
the  common  law  b^-  implication. 


SEOT.  III.]     CONSPIKACY  AND  OTHER  OFFENCES  AGAINST  TRADE,        865 

We  do  not  deem  it  necessary  to  review  the  instructions  in  detail. 
We  have  examined  them  and  the  questions  made  upon  them,  and  find 
no  error  committed  by  the  court  in  the  instructions;  nor  do  we  think 
that  the  verdict  was  unsustained  by  the  proof.  The  judgment  is 
affirmed.  Judymetit  ajfinned. 


SECTION   III. 

Conspiracy  and  other  Offences  against  Trade. 

Ordinance  for  bakers,  &c.,  c.  10.^  Be  it  commanded  on  the  behalf  of 
our  Lord  the  King,  that  no  forestaller  be  suffered  to  dwell  in  any  town, 
which  is  an  open  oppressor  of  poor  people,  and  of  all  the  commonalty, 
and  an  enemy  of  the  whole  shire  and  country,  which  for  greediness  of 
his  private  gain  doth  prevent  others  in  bu3'ing  grain,  fish,  herring  or 
any  other  thing  to  be  sold  coming  by  land  or  water,  oppressing  the 
poor  and  deceiving  the  rich,  which  carrieth  away  such  tilings,  intend- 
ing to  sell  them  more  dear ;  the  which  come  to  merchants  stranger  that 
bring  merchandise  ofl^'ering  them  to  buy,  and  informing  them  that  their 
goods  might  be  dearer  sold  than  they  intended  to  sell,  and  an  whole 
town  or  a  country  is  deceived  by  such  craft  and  subtlety.  He  that  is 
convict  thereof  the  first  time  shall  be  amerced,  and  shall  lose  the  thing 
so  bought,  and  that  according  to  the  custom  and  ordinance  of  the  town  ; 
he  that  is  convict  the  second  time  shall  have  judgment  of  the  pillorj'  ; 
at  the  third  time  he  shall  be  imprisoned  and  make  fine  ;  the  fourth  time 
he  shall  abjure  the  town.  And  this  judgment  shall  be  given  upon  all 
manner  of  forestallers,  and  likewise  upon  them  that  have  given  them 
counsel,  help,  or  favor. 

1  Published  during  the  thirteenth  century  ;  the  exact  date  is  uncertain.  —  Ed. 


866  ARTICLES    OF   INQUEST.  [CHAP.  XIV. 

ARTICLES   OF   INQUEST. 
All  the  Justices.     1352. 
[Reported  Lib.  Assis.  138,  pi.  44.] 

These  are  the  articles  which  are  to  be  inquired  of  by  the  Inquest  of 
Office  in  the  King's  Bench,  summoned  to  inquire  of  homicides,  thieves, 
burners  of  houses,  ravishers  of  women,  and  of  all  manner  of  felons  and 
of  felonies,  and  their  receivers,  procurers,  and  maintainers,  as  well  in 
the  time  of  the  King's  father,  as  in  the  time  of  the  King  who  now  is,  of 
escapes  of  thieves,  &c.  . 

Likewise  of  those  who  bind  others  b}-  their  robes  or  fees  to  conceal 
the  truth,  and  to  maintain  their  evil  emprises,  &c.  And  7wte,  that 
two  were  indicted  for  confederacy,  each  of  them  to  maintain  the  other, 
whether  their  cause  were  true  or  false  ;  and  notwithstanding  nothing 
was  alleged  to  be  put  in  motion,  the  parties  were  held  to  answer, 
because  this  thing  is  forbidden  by  the  law,  &c. 

Likewise  of  conspirators,  and  confederates,  who  bind  themselves 
together  by  oath,  covenant,  or  some  other  alliance,  that  each  of  them 
will  aid  and  sustain  the  otlier's  emprise,  be  it  false  or  true  ;  and  who 
falsely  have  persons  indicted  or  acquitted,  or  falsely  bring  or  maintain 
pleas,  by  means  of  alliance,  &c.   .   .   . 

Likewise  of  forestallers  of  victual,  and  of  purveyors  of  victual  with- 
out being  duly  appraised  by  the  vill,  or  those  who  take  them  without 
making  a  bargain  with  the  persons  from  whom  they  take  thom,  accord- 
ing to  the  statute  in  such  case  provided.  .  .  .  Likewise  of  merchants 
who  by  covin  and  alliance  among  themselves  from  year  to  year  put  a 
certain  price  on  wool  which  is  for  sale  in  the  country,  so  that  none  of 
them  will  buy  or  overbid  another  in  buying  wool  beyond  the  certain  price 
which  they  themselves  have  ordained  :  to  the  great  impoverishment  of 
the  people,  &c.  .  .   . 

Likewise  of  all  manner  of  oppressions  and  grievances  done  to  the 
people  of  our  Lord  the  King. 


SECT.  III.]  THE  lombakd's  case.  867 


THE  LOMBARD'S   CASE. 

London  Assizes.     13G8. 

[Reported  Lib.  Assis.  276,  pi.  38.] 

A  Lombard  was  indicted  in  London  for  concealing  the  customs  of 
our  Lord  tlie  King,  and  for  divers  otlier  tilings  ;  and  presentment  was 
also  made  against  him,  that  he  had  procured  and  promoted  the  enhanc- 
ing of  the  price  of  merchandize.  And  judgment  for  him  was  prayed 
because  this  was  not  forestalling,  nor  could  it  sound  in  forestalling ; 
and  since  it  did  not  appear  from  the  presentment  that  any  wrong  was 
actually  done,  he  should  not  be  held  to  answer.  And  non  allocatur ; 
for  Knivet  said,  that  certain  persons  (whom  he  named)  came  into  the 
neighborhood  of  Coteswold,  and  in  deceit  of  the  people  said  that  no 
wool  could  cross  the  sea  in  the  next  year,  there  were  so  many  wars  in 
those  parts  ;  by  which  the}-  depressed  the  price  of  wool.  And  they 
were  brought  before  the  King's  Council,  and  could  not  deny  it ;  where- 
fore the}'  were  put  to  fine  and  ransom  before  the  King. 

And  so  in  this  case.     Wherefore  he  pleaded  not  guilty,  &c. 

Coke,  3rd  Institute,  196.  It  was  upon  conference  and  mature  delibera- 
tion resolved  b}^  all  the  justices,  that  any  merchant,  subject  or  stranger, 
bringing  victuals  or  merchandize  into  tins  realme,  may  sell  them  in 
grosse  ;  but  that  vendee  cannot  sell  them  againe  in  grosse,  for  then  he 
is  an  ingrosser  according  to  the  nature  of  the  word,  for  that  he  buy 
ingrosse  and  sell  ingrosse,  and  may  be  indicted  thereof  at  the  common 
law.  as  for  an  oifence  that  is  7nalum  in  se.  2.  That  no  merchant  or 
other  may  buy  within  the  realme  any  victuall  or  other  merchandize  in 
grosse,  and  sell  the  same  in  grosse  againe,  for  then  he  is  an  ingrosser, 
and  punishable  ut  sujyra  ;  for  by  this  means  the  prices  of  victuals  and 
other  merchandize  shall  be  inhaunced,  to  the  grievance  of  the  subject; 
for  the  more  hands  they  passe  through,  the  dearer  the}'  grow,  for  every 
one  thirsteth  after  gaine,  vitiosutn  situint  lucrum.  And  if  these  things 
were  lawfull,  a  riche  man  might  ingrosse  into  his  hands  all  a  commodity 
and  sell  the  same  at  what  price  he  will.  And  every  practice  or  device 
by  act,  conspiracy,  words  or  newes,  to  inhaunce  the  price  of  victuals  oi 
other  merchandize,  was  punishable  by  law  ;  and  they  relied  much  upon 
the  statute  aforesaid,  nullus  forstallarius,  &c.,  which  see  before  in 
this  chapter :  and  that  the  name  of  an  ingrosser  in  the  reigne  of 
H.  3  and  E.  1  was  not  known,  but  comprehended  within  this  word 
[forstaUariiis'j  lucrum  sitiens  vitiosum  ;  and  ingrossing  is  a  branch  of 
forestalling.  And  for  that  forstallarius  was  jxmperum  depressor,  ei 
totius  comm,umtcftis  et  patriae  publicus  iti{m,icus,  he  was  punishable 
by  the  common  law. 

7  &  8  Vict.  c.  24,  sects.  1,  4.  Be  it  enacted,  &c.  .  .  .  that  after  the 
passing  of  this  Act  the  several  offences  of  badgering,  engrossing,  for^ 


868  THE   LOMBARD'S   CASE.  [CHAP.  XIV. 

stalling,  and  regrating  be  utterly  taken  awa}'  and  abolished,  and  that 
no  information,  indictment,  suit,  or  prosecution  shall  lie  either  at  com- 
mon law  or  b}'  virtue  of  any  statute,  or  be  commenced  or  prosecuted 
against  any  person  for  or  by  reason  of  any  of  the  said  offences  or 
supposed  otfences.^ 

Provided  alwa3-s,  and  be  it  enacted,  that  nothing  in  this  Act  con- 
tained shall  be  construed  to  apply  to  the  offence  of  knowingh'  and 
fraudulently  spreading  or  conspiring  to  spread  any  false  rumor,  with 
intent  to  enhance  or  deer}'  the  price  of  any  goods  or  merchandize,  or  to 
the  offence  of  preventing  or  endeavoring  to  prevent  by  force  or  threats 
any  goods,  wares,  or  merchandize  being  brought  to  any  fair  or  market, 
but  that  ever}'  such  offence  ma}'  be  inquired  of,  tried,  and  punished  as 
if  this  Act  had  not  been  made. 

23  Ed.  3,  c.  1,  2.  [Statute  of  Laborers.]  Ever}'  man  and  woman 
of  our  realm  of  Elngland,  of  what  condition  he  be,  free  or  bond,  able  in 
body,  and  within  the  age  of  threescore  ^ears,  not  living  in  merchandize, 
nor  exercising  any  craft,  nor  having  of  his  own  whereof  he  may  live, 
nor  proper  land,  about  whose  tillage  he  may  himself  occupy,  and  not 
serving  any  other,  if  he  in  convenient  service  (his  estate  considered)  be 
required  to  serve,  he  shall  be  bounden  to  serve  him  which  so  shall  him 
require.  And  take  onl}-  the  wages,  livery,  meed,  or  salary,  which  were 
accustomed  to  be  given  in  the  places  where  he  oweth  to  serve,  the  xx 
year  of  our  reigne  of  England,  or  five  or  six  other  common  years  next 
before.   .  .  . 

Item,  if  any  reaper,  mower,  or  other  workman  or  servant,  of  what 
estate  or  condition  that  he  be,  retained  in  any  man's  service,  do  depart 
from  the  said  service  without  reasonable  cause  or  licence,  before  the 
term  agreed,  he  shall  have  pain  of  imprisonment.  And  that  none  under 
the  same  pain  presume  to  receive  or  retain  any  such  in  his  service. "^ 

5  Eliz.  c  4,  sects.  5,  6.  And  be  it  further  enacted,  that  no  person 
which  shall  retain  an}'  servant  shall  put  away  his  or  her  said  servant, 
and  that  no  person  retained  according  to  this  statute  shall  depart  from 
his  master,  mistress  or  dame,  before  the  end  of  his  or  her  teim,  upon 
the  pain  hereafter  mentioned,  unless  it  be  for  some  reasonable  and 
sufficient  cause  or  matter  to  be  allowed  before  two  justices  of  peace,  or 
one  at  the  least,  within  the  said  county. 

And  that  no  such  master,  mistress  or  dame  shall  put  away  any  such 
servant  at  the  end  of  his  term,  or  that  any  such  servant  shall  depart 
from  his  said  master,  mistress  or  dame  at  the  end  of  his  term,  without 
one  quarter's  warning  given  before  the  end  of  his  said  term,  either  by 
the  said  master,  mistress  or  dame,  or  servant,  the  one  to  the  other, 
upon  the   pain  hereafter  ensuing.^ 

^  See  Sect.  2  of  this  Act  for  a  list  of  the  statutes  dealing  with  these  subjects  —  Ed 
2  This  statute  and   later  statutes  to  the  same   effect  were   modified  by   5   Eliz. 
c.  4.  — Ed. 

»  Repealed  38  &  39  Vict.  c.  86,  sect   17.  —Ed. 


SECT.  III.]     HEX   V.   JOURNKYMAN-TAILORS   OF   CAMBRIDGE.  869 


REX    o:  JOURNEYMAN-TAILORS    OF    CAMBRIDGE. 
King's  Bench.     1721. 

[Reported  8  Modern,  10.] 

One  Wise,  and  several  other  journeyman-tailors,  of  or  in  the  town  of 
Cambridge,  were  indicted  for  a  conspirac}'  amongst  themselves  to  raise 
their  wages,  and  were  found  guilt}-. 

It  was  moved  in  arrest  of  judgment  u[)()n  several  errors  in  the  record. 

Thirdly.^  No  crime  appears  upon  tlie  face  of  this  indictment,  for  it 
only  charges  them  with  a  conspiracy  and  refusal  to  work  at  so  much 
pe7-  diem,  whereas  they  are  not  obliged  to  work  at  all  by  the  day  but  by 
the  year,  by  5  Eliz.  c.  4. 

It  was  answered,  tliat  the  refusal  to  work  was  not  the  crime,  but  the 
conspiracy  to  raise  the  wages. 

The  Court.  The  indictment,  it  is  true,  sets  forth  that  the  defend- 
ants refused  to  work  under  the  wages  which  they  demanded  ;  but  al- 
though these  might  be  more  than  is  directed  by  the  statute,  yet  it  is  not 
for  the  refusing  to  work  but  for  conspiring  that  they  are  indicted,  and 
a  conspiracy  of  any  kind  is  illegal  althougli  the  matter  about  which 
they  conspired  might  have  been  lawful  for  them,  or  any  of  them,  to  do, 
if  they  had  not  conspired  to  do  it,  as  appears  in  the  case  of  The  Tub- 
women  V.  The  Brewers  of  London. 

Fifthly.  This  indictment  ought  to  conclude  contra  fonnam  sfMuti  ; 
for  by  the  late  statute  7  Geo.  I.  c.  13,  journeymen-tailors  are  prohib- 
ited to  enter  into  any  contract  or  agreement  for  advancing  their  w^ages, 
&c.  And  the  statute  of  2  &  3  Edw.  VI.  c.  15,  makes  such  persons 
criminal. 

It  was  answered  that  the  omission  in  not  concluding  this  indictment 
contra  formam  statuti  is  not  material,  because  it  is  for  a  conspiracv» 
which  is  an  offence  at  common  law.  It  is  true,  the  indictment  sets 
forth  that  the  defendants  refused  to  work  under  such  rates,  which  were 
more  than  enjoined  by  the  statute,  for  that  is  only  two  shillings  a 
day ;  but  yet  these  words  will  not  bring  the  offence,  for  which  the 
defendants  are  indicted,  to  be  within  that  statute,  because  it  is  not  the 
denial  to  work  except  for  more  wages  than  is  allowed  by  the  statute, 
but  it  is  for  a  conspirac}'  to  raise  their  wages,  for  which  these  defend- 
ants are  indicted.  It  is  true  it  does  not  appear  by  the  record  that  the 
wages  demanded  were  excessive,  but  that  is  not  material,  because  it 
ma}-  be  given  in  evidence. 

The  Coukt.  This  indictment  need  not  conclude  contra  formam 
statuti,  because  it  is  for  a  conspiracy,  which  is  an  offence  at  common 
law. 

So  the  judgment  was  confirmed  by  the  whole  court  qitod  capiantur. 

'*■  The  first,  second,  .and  fourtli  obiections  are  oniitted. 


870  COMMONWEALTH    V.    HUNT.  [CHAP.  XIV. 


COMMONWEALTH  v.  HUNT. 
Supreme  Judicial  Court  ok  Massachusetts.      1842, 

[Reported  4  MetcalJ]   111. J 

Shaw,  C.  J.  The  counsel  for  the  defendants  contended,  and  re- 
quested the  court  to  instruct  the  jury,  that  the  indictment  did  not  set 
forth  an}'  agieenieut  to  do  a  criminal  act,  or  to  do  an^-  lawful  act  by 
any  specified  oriminal  means,  and  that  the  agreements  therein  set  forth 
did  not  constitute  a  conspiracy  indictal)le  by  any  law  of  this  Common- 
wealth. But  the  judge  refused  so  to  do,  and  instructed  the  jur\',  that 
the  indictment  did,  in  his  opinion,  describe  a  confederac}'  among  the 
defendants  to  do  an  unlawful  act,  and  to  effect  the  same  by  unlawful 
means  ;  that  the  society,  organized  and  associated  for  the  purposes 
described  in  the  indictment,  was  an  unlawful  conspirac}',  against  the 
laws  of  this  Commonwealth  ;  and  that  if  the  jury  l)elieved,  from  the 
evidence  in  the  case,  that  the  defendants,  or  any  of  them,  had  engaged 
in  such  a  confederacy,  the}'  were  bound  to  find  such  of  them  guilty. 

We  are  here  carefully  to  distinguish  between  the  confederacy  set 
forth  in  the  indictment,  and  the  confederacy  or  association  contained  in 
the  constitution  of  the  Boston  Journeymen  Bootmakers'  Society,  as 
stated  in  the  little  printed  book,  which  was  admitted  as  evidence  on  the 
trial.  Because,  though  it  was  thus  admitted  as  evidence,  it  would  not 
warrant  a  conviction  for  anything  not  stated  in  the  indictment.  It 
was  proof,  as  far  as  it  went,  to  support  the  averments  in  tlie  indietment. 
If  it  contained  any  criminal  matter  not  set  forth  in  the  indictment,  it  is 
of  no  avail.  The  question  then  presents  itself  in  the  same  form  as  on 
a  motion  in  arrest  of  judgment. 

The  first  count  set  forth,  that  the  defendants,  with  divers  others 
unknown,  on  the  day  and  at  the  place  named,  being  workmen  and  jour- 
neymen, in  the  art  and  occupation  of  bootmakers,  unlawfully,  perni- 
ciously and  deceitfully  designing  and  intending  to  continue,  keep  up, 
form,  and  unite  themselves,  into  an  unlawful  club,  society,  and  combina- 
tion, and  make  unlawful  by-laws,  rules,  and  orders,  among  themselves, 
<and  thereby  govern  themselves  and  other  workmen,  in  the  said  art,  and 
unlawfully  and  unjustly  to  extort  great  sums  of  money  by  means 
thereof,  did  unlawfully  assemble  and  meet  together,  and  being  so 
assembled,  did  unjustly  and  corruptly  conspire,  combine,  confederate, 
and  agree  together,  that  none  of  them  should  thereafter,  and  that  none 
of  them  would,  work  for  any  master  or  person  whatsoever,  in  the  said 
art,  mystery,  and  occupation,  who  should  employ  any  workman  or  jour- 
neyman, or  other  person,  in  the  said  art,  who  was  not  a  member  of 
said  club,  society,  or  combination,  after  notice  given  him  to  discharge 
such  workmen,  from  the  employ  of  such  master ;  to  the  great  damage 
and  oppression,  etc. 

1  Part  ouly  of  the  opinion  is  given. 


SECT.  III.]  COMMONWEALTH   V.    HUNT.  871 

Now  it  is  to  be  considered,  that  the  preamble  and  introductoiy  mat- 
ter in  the  indictment  —  such  as  unhivvfiilly  and  deceitfully  designing  and 
intending  unjustly  to  extort  great  sums,  etc.  —  is  mei'c  recital,  and  not 
traversable,  and  therefore  cannot  aid  an  imperfect  averment  of  the 
facts  constituting  the  description  of  Ihe  offence.  The  same  may  be 
said  of  the  concluding  matter,  which  follows  the  averment,  as  to  the 
great  damage  and  oppression  not  only  of  their  said  masters,  employing 
them  in  said  art  and  occupation,  but  also  of  divers  other  workmen  in 
the  same  art,  mystery,  and  occupation,  to  the  evil  example,  &c.  If  the 
facts  averred  constitute  the  crime,  these  are  properly  stated  as  the  legal 
inferences  to  be  drawn  from  them.  If  they  do  not  constitute  the  charge 
of  such  an  offence,  they  cannot  be  aided  by  these  alleged  consequences. 

Stripped  then  of  these  introductory  recitals  and  alleged  injurious 
consequences,  and  of  the  qualifying  epithets  attached  to  the  facts,  the 
averment  is  this  ;  that  the  defendants  and  others  formed  themselves 
into  a  society,  and  agreed  not  to  work  for  any  person,  who  should 
employ  any  journeyman  or  otlier  person,  not  a  member  of  such  society, 
after  notice  given  him  to  discharge  such  workman. 

The  manifest  intent  of  the  association  is,  to  induce  all  those  engaged 
in  the  same  occupation  to  become  members  of  it.  Such  a  purpose  is 
not  unlawful.  It  would  give  them  a  power  which  might  be  exerted  for 
useful  and  honorable  purposes,  or  for  dangerous  and  pernicious  ones. 
If  the  latter  were  the  real  and  actual  object,  and  susceptible  of  proof, 
it  should  have  been  specially  charged.  Such  an  association  might  be 
used  to  afford  each  other  assistance  in  times  of  poverty,  sickness,  and 
distress  ;  or  to  raise  their  intellectual,  moral,  and  social  condition  ;  or  to 
make  improvement  in  their  art ;  or  for  other  proper  purposes.  Or  the 
association  might  be  designed  for  purposes  of  oppression  and  injustice. 
But  in  order  to  charge  all  those,  who  become  members  of  an  association, 
with  the  guilt  of  a  criminal  conspiracy,  it  must  be  averred  and  proved 
that  the  actual,  if  not  the  avowed  object  of  the  association,  was  crim- 
inal. An  association  may  be  formed,  the  declared  objects  of  which  are 
innocent  and  laudable,  and  yet  the}'  may  have  secret  articles,  or  an 
agreement  communicated  only  to  the  members,  b}'  which  the}-  are 
banded  together  for  purposes  injurious  to  the  peace  of  society  or  the 
rights  of  its  members.  Such  would  undoubtedh'  be  a  criminal  conspir- 
acv,  on  proof  of  the  fact,  however  meritorious  and  praiseworthy  the 
declared  objects  might  be.  The  law  is  not  to  be  hoodwinked  by  color- 
able pretences.  It  looks  at  truth  and  reality,  through  whatever  disguise 
it  may  assume.  But  to  make  such  an  association,  ostensibly  innocent, 
the  subject  of  prosecution  as  a  criminal  conspiracy,  the  secret  agree- 
ment w^hich  makes  it  so  is  to  be  averred  and  proved  as  the  gist  of  the 
offence.  But  when  an  association  is  formed  for  purposes  actually  inno- 
cent, and  afterwards  its  powers  are  abused,  by  those  who  have  the  con- 
trol and  management  of  it,  to  purposes  of  oppression  and  injustice,  it 
will  be  criminal  in  those  who  thus  misuse  it,  or  give  consent  thereto, 
but  not  in  the  other  members  of  the  association.     In  this  case,  no  such 


872  COMMONWEALTH   V.    HUNT.  [CHAP.  XIV. 

secret  agreement,  varying  the  o])jects  of  the  association  from  those 
avowed,  is  set  forth  in  this  count  of  the  indictment. 

Nor  can  we  perceive  that  the  objects  of  this  association,  whatever 
they  may  have  been,  were  to  be  attained  b}'  criminal  means.  The 
means  which  they  proposed  to  emplo}',  as  averred  in  this  count,  and 
which,  as  we  are  now  to  presume,  were  establislied  by  the  proof,  were, 
that  the^'  would  not  work  for  a  person,  who,  after  due  notice,  should 
emploj' a  journeyman  not  a  member  of  their  societ}'.  Supposing  the 
object  of  the  association  to  be  laudable  and  lawful,  or  at  least  not 
unlawful,  are  these  means  criminal?  The  case  supposes  that  these 
persons  are  not  bound  by  contract,  but  free  to  work  for  whom  they 
please,  or  not  to  work,  if  tliey  so  prefer.  In  this  state  of  things,  we 
cannot  perceive,  that  it  is  criminal  for  men  to  agree  together  to  exer- 
cise their  own  acknowledged  rights,  in  such  a  manner  as  best  to  sub- 
serve theii'  own  interests.  One  way  to  test  this  is,  to  consider  the 
effect  of  such  an  agreement,  where  the  object  of  the  association  is 
acknowledged  on  all  hands  to  be  a  laudable  one.  Suppose  a  class  of 
workmen,  impressed  with  the  manifold  evils  of  intemperance,  should 
agree  with  each  other  not  to  work  in  a  shop  in  which  ardent  spirit  was 
furnished,  or  not  to  work  in  a  shop  with  an}'  one  who  used  it,  or  not  to 
work  for  an  employer,  who  should,  after  notice,  emplo}-  a  journeyman 
who  habitually  used  it.  The  consequences  might  be  the  same.  A 
workman,  who  should  still  persist  in  the  use  of  ardent  spirit,  would  find 
it  more  diflScult  to  get  employment ;  a  master  employing  such  an  one 
might,  at  times,  experience  inconvenience  in  his  work,  in  losing  the 
services  of  a  skilful  but  intemperate  workman.  Still,  it  seems  to  us, 
that  as  the  object  would  be  lawful,  and  the  means  not  unlawful,  such 
an  agreement  could  not  be  pronounced  a  criminal  conspiracy. 

From  this  count  in  the  indictment,  we  do  not  understand  that  the 
agreement  was,  that  the  defendants  would  refuse  to  work  for  an  em- 
ploj-er,  to  whom  the}-  were  bound  by  contract  for  a  certain  time,  in 
violation  of  that  contract ;  nor  that  the}'  would  insist  that  an  employer 
should  discharge  a  workman  engaged  by  contract  for  a  certain  time,  in 
viohxtion  of  such  contract.  It  is  perfectly  consistent  with  everything 
stated  in  this  count,  that  the  effect  of  the  agreement  was,  that  when 
they  were  free  to  act,  they  would  not  engage  with  an  emplo}er  or  con- 
tinue in  his  employment,  if  such  employer  when  free  to  act  should 
engage  with  a  workman,  or  continue  a  workman  in  his  employment  not 
a  member  of  the  association.  If  a  large  number  of  men  engaged  for  a 
certain  time  should  combine  together  to  violate  their  contract  and  quit 
their  employment  together  it  would  present  a  very  different  question. 
Suppose  a  farmer  employing  a  large  number  of  men,  engaged  for  the 
year  at  fan*  monthly  wages,  and  suppose  that  just  at  the  moment  that  his 
crops  were  ready  to  harvest,  they  should  all  combine  to  quit  his  service 
unless  he  would  advance  their  wages  at  a  time  when  other  laborers 
could  not  be  obtained.  It  would  surely  be  a  conspiracy  to  do  an 
unlawful  act,  though  of  such  a  character  that  if  done  b}'  an  individual 


SECT.  III.]  COMMONWEALTH   V.   HUNT.  873 

it  would  la}'  the  foundation  of  a  civil  action  onl}-  and  not  of  a  criminal 
prosecution.  It  would  be  a  case  very  different  from  tliat  stated  in  tbia 
count. 

i'he  second  count,  omitting  the  recital  of  unlawful  intent  and  evil 
disposition,  and  omitting  the  direct  averment  of  an  uuhuvful  club  or 
society,  alleges  that  the  defendants  with  others  unknown  did  assemble, 
conspire,  confederate,  and  agree  together,  not  to  worli  for  any  master 
or  person  who  should  employ  any  workman  not  being  a  member  of  a 
certain  club,  society,  or  combination,  called  the  Boston  Journe3-men 
Bootmakers'  Society,  or  who  should  break  any  of  their  by-laws,  unless 
such  workmen  should  pay  to  said  club,  such  sum  as  should  be  agreed 
upon  as  a  penalty  for  the  breach  of  such  unlawful  rules,  etc.  ;  and  that 
b}'  means  of  said  conspiracy  the}-  did  compel  one  Isaac  B.  Wait,  a  mas- 
ter cordwainer,  to  turn  out  of  his  employ  one  Jeremiah  Ilorne,  a  jour- 
neyman boot-maker,  etc.  in  evil  example,  &c.  So  far  as  the  averment 
of  a  conspiracy  is  concerned  all  the  remarks  made  in  reference  to  the 
first  count  are  equally  applicable  to  this.  It  is  simpl}'  an  averment 
of  an  agreement  amongst  themselves  not  to  work  for  a  person  who 
should  employ  an}-  person  not  a  member  of  a  certain  association.  It 
sets  forth  no  illegal  or  criminal  purpose  to  be  accomplished,  nor  any 
illegal  or  criminal  means  to  be  adopted  for  the  accomplishment  of  any 
purpose.  It  was  an  agreement  as  to  the  manner  in  which  they  would 
exercise  an  acknowledged  right  to  contract  with  others  for  their  labor. 
It  does  not  aver  a  conspiracy  or  even  an  intention  to  raise  their  wages  ; 
and  it  appears  b}'  tlie  bill  of  exceptions  tliat  the  case  was  not  put  upon 
the  footing  of  a  conspiracy  to  raise  their  wages.  Such  an  agreement 
as  set  forth  in  this  count  would  be  perfectly  justifiable  under  the  recent 
English  statute  by  which  this  subject  is  regulated.  St.  6  Geo.  IV. 
c.  129.     See  Roscoe  Crim.  Ev.  (2d  Amer.  ed.)  368^  369. 

As  to  the  latter  part  of  this  count  which  avers  that  by  means  of  said 
conspirac}'  the  defendants  did  compel  one  Wait  to  turn  out  of  his 
emplo}-  one  Jeremiah  Home,  we  remark,  in  the  first  place,  that  as  the 
acts  done  in  pursuance  of  a  conspiracy,  as  we  have  before  seen,  are 
stated  by  way  of  aggravation,  and  not  as  a  substantive  charge  ;  if  no 
criminal  or  unlawful  conspiracy  is  stated,  it  cannot  be  aided  and  made 
good  by  mere  matter  of  aggravation.  If  the  principal  charge  falls  the 
aggravation  falls  with  it.     State  v.  Rickey,  4  Halst.  293. 

But  further,  if  this  is  to  be  considered  as  a  substantive  charge  it 
would  depend  altogether  upon  the  force  of  the  word  "  compel,"  which 
may  be  used  in  the  sense  of  coercion,  or  duress,  by  force  or  fraud.  It 
would  therefore  depend  upon  the  context  and  the  connection  with  other 
words,  to  determine  the  sense  in  which  it  was  used  in  the  indictment. 
If,  for  instance,  the  indictment  had  averred  a  conspirac}'  by  the  defend- 
ants to  compel  Wait  to  turn  Home  out  of  his  employment,  and  to 
accomplish  that  object  b}'  the  use  of  force  or  fraud,  it  would  have  been 
a  ver}'  different  case  ;  especially  if  it  might  be  fairly  construed,  as  per- 
haps in  that  case  it  might  have  been,  that  Wait  was  under  obligation 


874  COMMONWEALTH   V.    HUNT.  [CHAP.  XIV. 

by  contract  for  an  unexpired  term  of  time  to  emplo}'  and  pay  Home. 
As  before  remarked,  it  would  have  been  a  conspiracy  to  do  an  unlaw- 
ful, though  not  a  criminal  act,  to  induce  Wait  to  violate  his  eni^age- 
ment  to  the  actual  injury  of  Ilorne.  To  mark  the  difference  between 
the  case  of  a  journeyman  or  a  servant  and  master  mutually  bound  bv 
contract,  and  the  same  parties  when  free  to  engage  anew,  I  should  have 
before  cited  the  case  of  the  Boston  Glass  Co.  i\  Binne^-,  4  Pick.  425. 
In  that  case  it  was  held  actionable  to  entice  another  person's  hired  ser- 
vant to  quit  his  employment  during  the  time  for  which  he  was  engaged  ; 
but  not  actionable  to  treat  with  such  hired  servant,  whilst  actually  hired 
and  employed  by  another,  to  leave  his  service  and  engage  in  the  emplov- 
rxient  of  the  person  making  the  proposal,  when  the  term  for  which  he  is 
engaged  shall  expire.  It  acknowledges  the  established  principle  that 
every  free  man,  whether  skilled  laborer,  mechanic,  farmer,  or  domestic 
servant,  ma}-  work  or  not  work,  or  work  or  refuse  to  work  with  any 
company  or  individual,  at  his  own  option,  except  so  far  as  he  is  bound 
by  contract.  But  whatever  might  be  the  force  of  the  word  "  compel." 
unexplained  by  its  connection,  it  is  disarmed  and  rendered  harmless  by 
the  precise  statement  of  the  means  b}-  which  such  compulsion  was  to 
be  effected.  It  w^as  the  agreement  not  to  work  for  him  bj-  wiiich  they 
compelled  Wait  to  decline  employing  Home  longer.  On  both  of  these 
grounds  we  are  of  opinion  that  the  statement  made  in  this  second  count 
that  the  unlawful  agreement  was  carried  into  execution  makes  no 
essential  difference  between  this  and  the  first  count. 

The  third  count,  reciting  a  wicked  and  unlawful  intent  to  impoverish 
one  Jeremiah  Home  and  hinder  him  from  following  his  trade  as  a  boot- 
maker, charges  the  defendants,  with  others  unknown,  with  an  unlawful 
conspiracy,  by  wrongful  and  indirect  means,  to  impoverish  said  Home, 
and  to  deprive  and  hinder  him  from  his  said  art  and  trade  and  getting 
his  support  therebv,  and  that  in  pursuance  of  said  unlawful  combina- 
tion, the}'  did  unlawfully  and  indirectly  hinder  and  prevent,  &c.  and 
greatly  impoverish  him. 

If  the  fact  of  depriving  Jeremiah  Home  of  the  profits  of  his  business 
b}-  whatever  means  it  might  be  done  would  be  unlawful  and  criminal,  a 
combination  to  compass  that  object  would  be  an  unlawful  conspirac}', 
and  it  would  be  unnecessary  to  state  the  means.  Such  seems  to  have 
been  the  view  of  the  court  in  The  King  v.  Eccles,  3  Doug.  337,  though 
the  case  is  so  briefly  reported  that  the  reasons  on  which  it  rests  are  not 
very  obvious.  The  case  seems  to  have  gone  on  the  ground  that  the 
means  were  matter  of  evidence  and  not  of  averment,  and  that  after 
verdict  it  was  to  be  presumed  that  the  means  contemplated  and  used 
were  such  as  to  render  the  combination  unlawful  and  constitute  a 
conspiracy. 

Suppose  a  baker  in  a  small  village  had  the  exclusive  custom  of  his 
neighborhood,  and  was  making  large  profits  by  the  sale  of  his  bread. 
Supposing  a  number  of  those  neighbors,  believing  the  price  of  his  bread 
too  high,  should  propose  to  him  to  reduce  his  prices,  or  if  he  did  not 


SECT.  III.]  COMMONWEALTH    V.    HUNT.  B75 

that  they  woukl  introduce  another  baker,  and  on  his  refusal  such  other 
baker  should  under  their  encouragement  set  up  a  rival  establishment, 
and  sell  his  bread  at  lower  prices,  tiie  effect  would  be  to  diminisli  the 
profit  of  the  tbrmer  baker  and  to  the  same  extent  to  impoverish  him. 
And  it  might  be  said  and  proved  that  the  purpose  of  the  associates  was 
to  diminish  his  profits  and  thus  impoverish  him,  though  the  ultimate 
and  laudable  object  of  the  combination  was  to  reduce  the  cost  of  bread 
to  themselves  and  their  neighbors.  The  same  thing  ma}-  be  said  of  all 
competition  in  every  branch  of  trade  and  industry,  and  yet  it  is  through 
that  competition  that  the  best  interests  of  trade  and  industry  are  pro- 
moted. It  is  scarcely  necessarj'  to  allude  to  the  familiar  instances  of 
opposition  lines  of  conveyance,  rival  hotels,  and  the  thousand  other 
instances  where  each  strives  to  gain  custom  to  himself  by  ingenious 
improvements,  by  increased  industry,  and  by  all  the  means  by  which 
he  may  lessen  the  price  of  commodities,  and  thereby  diminish  the 
profits  of  others. 

We  think,  therefore,  that  associatious  may  be  entered  into,  the 
object  of  which  is  to  adopt  measures  that  may  have  a  tendency  to 
impoverish  another,  that  is,  to  diminish  his  gains  and  profits,  and  yet 
so  far  fi'om  being  criminal  or  unlawful,  the  object  may  be  highly  meri- 
torious and  public  spirited.  The  legality  of  such  an  association  will 
therefore  depend  upon  the  means  to  be  used  for  its  accomplishment. 
If  it  is  to  be  carried  into  effect  by  fair  or  honorable  and  lawful  means, 
it  is,  to  say  the  least,  innocent;  if  by  falsehood  or  force,  it  maj-  be 
stamped  with  the  character  of  conspiracy.  It  follows  as  a  necessary 
consequence  that  if  criminal  and  indictable  it  is  so  by  reason  of  the 
criminal  means  intended  to  be  employed  for  its  accomplishment ;  and 
as  a  further  legal  consequence,  that  as  the  criminality  will  depend  on 
the  means  those  means  must  be  stated  in  the  indictment.  If  the  same 
rule  were  to  prevail  in  criminal  which  holds  in  civil  proceedings,  that 
a  case  defectively  stated  may  be  aided  by  a  verdict,  then  a  court  might 
presume  after  verdict  that  the  indictment  was  supported  by  proof  of 
criminal  or  unlawful  means  to  efll'ect  the  object.  But  it  is  an  estab- 
lished ride  in  criminal  cases  that  the  indictment  must  state  a  complete 
indictable  offence,  and  cannot  be  aided  b}'  the  proof  offered  at  the  trial. 

The  fourth  count  avers  a  conspiracy  to  impoverish  Jeremiah  Home 
without  stating  any  means  ;  and  the  fifth  alleges  a  conspiracy  to  impov- 
erish employers  b}'  preventing  and  hindering  them  from  employing 
persons  not  members  of  the  Bootmakers'  Societj',  and  these  require  no 
remarks  which  have  not  been  already  made  in  reference  to  the  other 
counts. 

One  case  was  cited  which  was  supposed  to  be  much  in  point,  and 
which  is  certainly  deserving  of  great  respect.  The  People  v.  Fisher, 
14  Wend.  1.  But  it  is  obvious  that  this  decision  was  founded  on  the 
construction  of  the  revised  statutes  of  New  York  by  which  this,  matter 
of  conspiracy  is  now  regulated.  It  was  a  conspirac}'  by  journeymen  to 
raise  their  wages,  and  it  was  decided  to  be  a  violation  of  the  statutes 


876  COMMONWEALTH   V.   HUNT.  [CHAP.  XIV. 

making  it  criminal  to  commit  an}-  act  injurious  to  trade  or  commerce. 
It  has,  therefore,  an  indirect  application  onh"  to  the  present  case. 

A  caution  on  this  subject  suggested  by  the  commissioners  for  revis- 
ing the  statutes  of  New  York  is  entitled  to  great  consideration.  They 
are  alluding  to  the  question  whether  the  law  of  conspiracy  should  be 
so  extended  as  to  embrace  every  case  where  two  or  more  unite  in  some 
fraudulent  measure  to  injure  an  individual  by  means  not  in  themselves 
criminal.  "The  great  ditliculty,"  say  they,  ''in  enlarging  the  defini- 
tion of  this  offence  consists  in  the  inevitable  result  of  depriving  the 
courts  of  equity  of  the  most  effectual  means  of  detecting  fraud  bv  com- 
pelling a  discover}'  on  oath.  It  is  a  sound  principle  of  our  institutions 
that  no  man  shall  be  compelled  to  accuse  himself  of  any  crime,  which 
ought  not  to  be  violated  in  any  case.  Yet  such  must  be  the  result  or 
the  ordinary  jurisdiction  of  courts  of  equity  must  be  destroyed  by 
declaring  any  private  fraud  when  committed  by  two,  or  an}-  concert  to 
commit  it  criminal."  9  Cow.  625.  In  New  Jersey  in  a  case  which  was- 
much  considered,  it  was  held  that  an  indictment  will  not  lie  for  a  con- 
spiracy to  commit  a  civil  injury.  State  v.  Rickey,  4  Halst.  293.  And 
such  seemed  to  be  the  opinion  of  Lord  EUenborough  in  The  King  v. 
Turner,  13  East,  231,  in  which  he  considered  that  the  case  of  The 
King  V.  Eccles,  3  Doug.  337,  though  in  form  an  indictment  for  a  conspii-- 
acy  to  prevent  an  individual  from  carrying  on  his  trade,  yet  in  sub- 
stance was  an  indictment  for  a  conspiracy  in  restraint  of  trade  affecting 
the  public. 

It  appears  by  the  bill  of  exceptions  tliat  it  was  contended  on  the  part 
of  the  defendants  that  this  indictment  did  not  set  forth  any  agreement 
to  do  a  criminal  act,  or  to  do  any  lawful  act  by  criminal  means,  and  that 
the  agreement  therein  set  forth  did  not  constitute  a  conspiracy  indict- 
able by  the  law  of  this  state,  and  that  the  court  was  requested  so  to 
instruct  the  jury.  This  the  court  declined  doing,  but  instructed  the 
jury  that  the  indictment  did  describe  a  confederacy  among  the  defend- 
ants to  do  an  unlawful  act,  and  to  effect  the  same  by  unlawful  means  ; 
that  the  society,  organized  and  associated  for  the  purposes  described 
in  the  indictment,  was  an  unlawful  conspiracy  against  the  laws  of  this 
state,  and  that  if  the  jury  believed  from  the  evidence  that  the  defend- 
ants or  any  of  them  had  engaged  in  such  confederacy  they  were  bound 
to  find  such  of  them  guilty. 

In  this  opinion  of  the  learned  judge  this  court  for  the  reasons  stated 
cannot  concur.  Whatever  illegal  purpose  can  be  found  in  the  constitu- 
tion of  the  Bootmakers'  Society,  it  not  being  clearly  set  forth  in  the 
indictment,  cannot  be  relied  upon  to  support  this  conviction.  So  if  any 
facts  were  disclosed  at  the  trial,  which  if  properly  averred  would  have 
given  a  different  character  to  the  indictment,  they  do  not  appear  iu  the 
bill  of  exceptions,  nor  could  they  after  verdict  aid  the  indictment.  But 
looking  solel}'  at  the  indictmen*-,  disregarding  the  qualifying  epithets, 
recitals,  and  immaterial  allegations,  and  confining  ourselves  to  facts  so 
averred  as  to  be  capable  of  being  traversed  and  put  in  issue,  we  cannot 


SECT.  III.]  STATE    V.    DOiNALDSON.  877 

perceive  that  it  charges  a  criminal  conspiracy  punishable  by  law.     The 
exceptions  must,  therefore,  be  sustained,  and  the  judgment  arrested. 

Several  other  exceptions  were  taken  and  have  been  argued  ;  but  this 
decision  on  the  main  (juestion  has  rendered  it  unnecessary  to  consider 
them. 


STATE   V.   DONALDSON. 
Supreme  Court  of  New  Jersey.     1867. 

[Reported  32  xV.  J.  Law,  151.] 

This  was  a  motion  to  quash  an  indictment  charging  a  conspiracy, 
which  had  been  brouglit  into  this  court  b}'  certiorari. 

The  substantial  facts  constituting  the  alleged  crime  were  these,  viz., 
that  the  defendants,  and  divers  other  evil  disposed  per.sous,  etc.,  being 
journej'men  workmen  employed  by  Richmond  Ward,  John  C.  Little, 
and  others,  who  then  and  there  were  engaged  together  in  the  manu- 
facture of  patent  leather,  and  as  curriers,  maliciously,  to  control,  in- 
jure, terrify,  and  impoverish  their  said  employers,  and  force  and  compel 
them  to  dismiss  from  their  said  employment  certain  persons,  to  wit, 
Charles  Beggan  and  William  Pendergrast,  then  and  there  retained  by 
their  said  employers  as  journeymen  and  workmen  for  them,  and  to 
injure  said  Charles  and  William,  and  without  having  any  lawful  cause 
of  objection  to  said  Charles  and  William,  unlawfully  did  conspire,  com- 
bine, confederate,  and  agree  together  to  quit,  leave,  and  turn  out  from 
their  said  emplo3'ment,  until  and  unless  the  said  last-mentioned  jour- 
neymen and  workmen  should  be  dismissed  b}'  their  said  employers. 
The  indictment  then  furtlier  charged,  that  in  pursuance  of  such  con- 
spiracy, they  gave  notice  of  their  agreement  to  their  said  employers, 
and  required  them  to  discharge  the  said  Charles  and  William,  which 
being  refused,  they  quitted  their  said  employment,  and  remained  away 
until  their  demand  was  complied  with. 

The  motion  was  argued  before  the  Chief  Justice,  and  Justices 
Bedle  and  Dalhimple. 

For  the  motion,  T.  K.  Mc Carter. 

For  the  state,  (J.  Parker. 

The  opinion  of  the  court  was  delivered  by 

Beasley,  C.  J.  There  is,  perhaps,  no  crime,  an  exact  definition  of 
which  it  is  more  difficult  to  give  than  the  offence  of  conspiracy.  That 
a  combination  of  persons  to  effect  an  end,  itself  of  an  indictable  nature, 
will  constitute  this  crime,  is  clear ;  nor  is  there  an}'  more  doubt  that, 
though  the  purpose  the  confederacy  is  designed  to  accomplish  be  not 
criminal,  yet  if  the  means  adopted  be  of  an  indictable  character,  this 
offence  is  likewise  committed.  Thus  far  the  limits  are  clearly  defined, 
and  embrace,  without  exception,  all  cases  which  fall  within  them.    But 


878  STATE   V.    DONALDSON.  [CHAP.  XIV. 

when  we  proceed  one  step  beyond  the  Hues  thus  raarked  out,  the  cases 
which  have  been  adjudged  to  be  conspiracies  appear  to  stand  apart  b}' 
themselves,  and  are  devoid  of  tliat  analogy  to  each  other  which  would 
render  them  susceptible  of  chissilication.  It  is  certain,  however,  that 
there  are  a  number  of  cases,  in  wiiich  neither  the  purpose  intended  to 
be  accomplished  nor  the  means  designed  to  be  used  were  criminal, 
which  have  been  regarded  to  be  indictable  conspiracies.  And  yet  it  is 
obvious  that,  in  the  nature  of  things,  it  cannot  be  every  collusion 
between  two  or  more  persons  to  do  an  unlawful  act,  or  an  iridifferenT 
act  b}'  unlawful  means,  which  will  constitute  an  offence  of  a  public 
nature  ;  for  if  this  were  so,  a  large  portion  of  the  transactions  which. 
in  the  ordinary  course  of  litigation  between  party  and  party,  conies 
before  the  courts,  would  assume  a  criminal  aspect,  in  which  the  state 
would  have  an  interest.  Indeed.  1  think  it  maj-  be  said  that  there  are, 
comparativel}',  but  few  cases  of  combinations  in  whijh  indictabilit}* 
does  not  attach,  either  to  the  end  in  view,  or  to  the  instrumentalities 
devised,  which  are  punishable  bv  a  public  prosecution.  It  is  true,  that 
running  to  an  extreme,  in  tiie  case  of  The  State  v.  Rickej',  4  Halst. 
293,  Mr.  Justice  Ford  insisted  that,  up  to  his  day,  there  was  but  a 
single  case  extant  —  that  of  Rex  v.  Cope  et  al.,  1  Strange,  144,  which 
held  that  an  indictment  for  a  conspiracy  would  lie  for  a  combination  of 
two  or  more  to  commit  a  private  injury  which  was  not  a  public  wrong  : 
and  he  further  insisted  that  the  case  referred  to  was  erroneously 
decided :  but  Mr.  Justice  R3-erson  did  not,  as  is  evident  from  the 
grounds  upon  which  he  rests  his  judgment,  concur  in  that  view  ;  and 
the  course  of  reasoning  adopted  by  Mr.  Justice  Ford  is  now  very  gene- 
rally admitted  to  be  fallacious.  In  the  case  of  The  State  v.  Norton, 
3  Zab.  44,  the  view  of  the  law  expressed  by  Mr.  Justice  Ford  is  disap- 
proved of,  and  Chief  Justice  Green,  in  stating  his  conclusion,  afcer  an 
examination  of  the  subject,  remarks,  "The  great  weight  of  auchorit}', 
the  adjudged  cases,  no  less  tb.an  the  most  approved  elementar_,-  writers, 
sustain  the  position,  that  a  conspiracy  to  defraud  individuals  or  a  cor- 
poration of  their  property,  may,  in  itself,  constitute  an  indictable 
offence,  though  the  act  done,  or  proposed  to  be  done  in  pursuance  of 
the  conspiracy,  be  not,  in  itself,  indictable." 

The  rule  of  law  thus  enunciated  appears  to  me  to  be  the  correct  one. 
There  are  a  number  of  cases  which  cannot  be  sustained  upon  any  other 
doctrine.  To  this  class  belongs  the  decision  that  it  was  a  conspiracy 
to  induce  a  young  female,  b}'  false  representations,  to  leave  the  protec- 
tion of  the  house  of  her  parent,  in  order  to  facilitate  her  prostitution. 
Rex  V.  Lord  Grey,  3  Margrave's  State  Trials,  519  ;  Rex  v.  Sir 
Francis  Deleval  and  others,  3  Burr.  1434.  So  a  conspiracy  to  im- 
poverish a  tailor,  and  prevent  him,  by  indirect  means,  from  carrying  on 
his  trade,  The  King  v.  Eccles,  3  Dougl.  337.  So  a  conspiracy  to 
marr}'  paupers,  with  a  view  to  charge  one  parish  and  exonerate  another. 
Rex  V.  Tarrent,  4  Burr.  21 OG  ;  or  to  charge  a  man  with  being  the 
father  of  a  bastard,  Rex  v.  Armstrong,  1  Vent.  304  ;  Rex  v.  Kimberty, 


SECT.  III.]  STATE   V.    DONALDSON.  879 

1  Lev.  62  ;  Rex  v.  Tiraberl}',  Sid.  68  ;  or  a  combination  to  impoverish 
a  class  of  persons,  Rex.  v.  Sterling,  1  Lev.  125 ;  s.  c.  Sid.  174. 
These  are  all  cases,  it  will  be  noticed,  in  which  the  act  which  formed 
the  foundation  of  the  indictment  would  not,  in  law,  have  constituted  a 
crime,  if  such  act  had  been  done  b}'  an  individual,  the  combination 
being  alone  the  quality  of  the  transactions  which  made  them  respec- 
tively indictable. 

I  conclude,  then,  that  there  is  no  uncertainty  in  this  legal  topic  to 
this  extent,  in  addition  to  the  principles  before  adverted  to,  that  cases 
may  occur  in  which  the  purpose  designed  to  be  accomi)lished  becomes 
punitive,  as  a  public  offence,  solely  from  the  fact  of  the  existence  of  a 
confederac}'  to  effect  such  purpose.  It  is  certainly  not  to  be  denied, 
however,  that  great  practical  difJicultj'  is  ex})erienced  whenever  any 
attempt  is  made  to  la}'  down  any  general  rules  I)}'  which  to  discriminate 
that  class  of  combinations  which  becomes  thus  punisiiable,  from  those 
which  are  to  be  regarded  in  their  results  as  mere  civil  injuries,  remedi- 
able b}'  private  suit.  It  may  be  safely  said,  nevertheless,  that  a  com- 
bination will  be  an  indictable  conspiracy,  whenever  the  end  proposed, 
or  the  means  to  be  employed  are  of  an  highly  criminal  character ;  or 
where  they  are  such  as  indicate  great  malice  in  the  confederates  ;  or 
where  deceit  is  to  be  used,  the  object  in  view  being  unlawful ;  or  where 
the  confederacy,  having  no  lawful  aim,  tends  simply  to  the  oppression 
of  individuals.  A  careful  analysis  of  the  cases  which  have  been  hereto- 
fore adjudged,  will  reveal  the  presence  of  one  or  more  of  the  quahties 
here  enumerated  ;  to  this  extent,  therefore,  they  ma}'  be  relied  on  as 
safe  criteria  whereby  to  test  new  emergencies  as  they  may  be  presented 
for  adjudication. 

In  view,  then,  of  these  general  deductions,  and  guided  by  the  deci- 
sions above  cited,  let  us  turn  our  attention  to  the  particular  indictment 
now  before  us. 

The  substantial  cffence  charged  is,  that  the  defendants  combined  to 
compel  their  employer  to  discharge  certain  of  their  fellow-workmen,  the 
means  adopted  to  enforce  this  concession  being  an  announced  determi- 
nation to  quit  their  employment  in  a  body  and  by  a  simultaneous  act. 
On  the  argument  before  this  court,  counsel  in  behalf  of  the  state 
endeavored  to  sustain  the  indictability  of  this  charge,  on  the  plea  that 
the  thing  thus  agreed  to  be  done  was  an  injury  to  trade,  and  conse- 
quently came  within  the  express  language  of  the  statute  on  the  subject 
of  conspiracy.  Nix.  Dig.  187,  §  Gl.  But  I  cannot  concur  in  this 
view.  An  act,  to  fall  within  this  provision,  must  be  one  which,  with 
directness,  inflicts  an  injury  on  trade,  as,  for  example,  a  combination 
to  depress  any  branch  of  trade  by  false  rumors.  But,  in  the  case 
before  us,  the  act  charged,  if  it  could  be  said  to  injure  trade  at  all,  did 
so  not  proximately,  but  remotely.  It  is  true  that,  at  a  far  remove,  an 
injury  to  an  individual  manufacturer  may  affect  trade  injuriously  ;  but, 
in  the  same  sense,  so  it  is  true,  will  an  injury  inflicted  on  a  consumer 
of  manufactured  articles.     But  it  is  not  this  undesigned  and  incidental 


880  STATE    V.    DONALDSON.  [CHAP.  XIV. 

damage  which  is  embraced  within  the  statutoiy  denunciation.  On  this 
account,  I  think  the  indictment  does  not  present  an  affair  which  can  be 
comprehended  by  the  clause  of  the  act  which,  in  this  respect,  was  relied 
on.  But  as  it  has  already  been  decided  by  this  court  that  the  statute 
in  question  has  not  superseded  the  common  law,  with  regard  to  the 
crime  of  conspiracy,  The  State  v.  Norton,  3  Zab.  40,  the  question  still 
remains  to  be  resolved,  whether  the  facts  charged  on  this  record  do  not 
constitute  such  crime  upon  general  principles. 

It  appears  to  me  that  it  is  not  to  be  denied,  that  the  alleged  aim  of 
this  combination  was  unlawful ;  the  effort  was  to  dictate  to  this  em- 
plo^'er  whom  he  should  discharge  from  his  emj)loy.  This  was  an 
unwarrantable  interference  with  the  conduct  of  his  business,  and  it 
seems  impossible  that  such  acts  should  not  be,  in  their  usual  effects, 
higiily  injurious.  How  far  is  this  mode  of  dictation  to  be  held  lawful? 
If  the  manufacturer  can  be  compelled  in  tliis  way  to  discharge  two  or 
more  hands,  he  can,  by  similar  means,  be  coerced  to  retain  such  work- 
men as  the  conspirators  may  choose  to  designate.  So  his  customers 
may  be  proscribed,  and  his  business  in  other  respects  controlled.  I 
cannot  regard  such  a  course  of  conduct  as  lawful.  It  is  no  answer  to 
the  above  considerations  to  say,  that  the  employer  is  not  compelled  to 
submit  to  the  demand  of  his  employees  ;  that  the  penalty  of  refusal  is 
simply  that  they  will  leave  his  service.  There  is  this  coercion  :  the 
men  agree  to  leave  simultaneously,  in  large  numbers  and  b}-  precon- 
certed action.  We  cannot  close  our  eyes  to  the  fact,  that  the  threat  of 
workmen  to  quit  the  manufacturer,  under  these  circumstances,  is  equi- 
valent to  a  threat,  tliat  unless  he  yield  to  their  unjustifiable  demand, 
they  will  derange  his  business,  and  thus  cast  a  heavy  loss  upon  him. 
The  workmen  who  make  this  threat  understand  it  in  this  sense,  and  so 
does  their  employer.  In  such  a  condition  of  affairs,  it  is  idle  to  suggest 
that  the  manufacturer  is  free  to  reject  the  terms  which  the  confederates 
offer.  In  the  natural  position  of  things,  each  man  acting  as  an  indi- 
vidual, there  would  l)e  no  coercion  :  if  a  single  employee  should  demand 
the  discharge  of  a  co-employee,  the  employer  would  retain  his  freedom, 
for  he  could  entertain  or  repel  the  requisition  without  embarrassment 
to  his  concerns  ;  but  in  the  presence  of  a  coalition  of  his  employees,  it 
would  be  but  a  waste  of  time  to  pause  to  prove  that,  in  most  cases,  he 
must  submit,  under  pain  of  often  tlie  most  ruinous  losses,  to  the  condi- 
tions imposed  on  his  necessities.  It  is  difficult  to  believe  that  a  right 
exists  in  law,  which  we  can  scarcely  conceive  can  produce,  in  any  pos- 
ture of  affairs,  other  than  injurious  results.  It  is  simply  the  right  o.f 
workmen,  by  concert  of  action,  and  by  taking  advantage  of  their  posi- 
tion, to  control  the  business  of  another.  I  am  unwilling  to  hold  that  a 
right  which  cannot  in  any  event  be  advantageous  to  the  employee,  and 
which  must  be  always  hurtful  to  the  employer,  exists  in  law.  In  my 
opinion,  this  indictment  sufficiently  shows  that  the  force  of  the  con- 
federates was  brought  to  bear  upon  their  employer  for  the  purpose  of 
oppression  and  mischief,  and  that  this  amounts  to  a  conspiracy. 


SECT.  III.]  STATE   V.   DONALDSON.  881 

I  also  think  this  result  is  sustained  by  all  the  judicial  opinion  which 
has  heretofore  been  expressed  on  this  point.     \n  substance,  the  indict- 
ment in  this  case  is  simihir  to  that  in  Rex  v.  Ferguson  and  Edge,  2 
Stark.  489.     Nor  were  the  circumstances  unlike  ;  for  in  tlie  reported 
case,  the  defendants  were  cliarged  at  connnon  law  with  combining  to 
quit  and  turn  out  from  their  employment,  in  order  to  prevent  their 
employer  from  taking  apprentices  ;  and  although  the  case,  after  trial 
and  conviction,  was  mooted  in  the  King's  Bench  on  i)oints  of  evidence, 
no  doubt  was  suggested  as  to  the  indictal)le  nature  of  the  offence,  and 
the  defendants  were  accordingly   fined   and  imprisoned.     So  in  Rex  v. 
Rickerdyke,  1  M.  &  Rob.  179,  the  same  doctrine  was  maintained.    The 
indictment  charged,  that  the  defendiint,  with  others,  conspired  to  pre- 
vent certain   hands  from  working  in   the  colliery;   and  the  evidence 
showed  that  the  body  of  the  men  met  and  agreed  ui)on  a  letter  addressed 
to  their  employer,  to  the  effect  that  all  the   workmen  would  strike  in 
fourteen  days  unless  the  obnoxious  men  were  discharged  from  the  col- 
hery  ;  and  Patterson,  Justice,  held  that  these  workmen  had  no  right  to 
meet  and  combine  for  the  purpose  of  dictating  to  the  master  whom  he 
should  employ,  and  that  this  compulsion  was  clearly  illegal.    These  two 
cases,  it  will  be  observed,  sustain  with  entire  aptness  the  opinion  above 
expressed,  and  I  have  not  found  any  of  an  opposite  tendency.     As  to 
the  case  of  The  Commonwealth  v.   Hunt,  4  Met.  Ill,  it  is  clearly  dis- 
tinguishable, and  I  concur  entirely,  as  well  with  the  principles  embodied 
in  the  opinion  which  was  read  in  the  case,  as  in  the  result  which  was 
attained.    The  foundation  of  the  indictment  in  that  case  was  the  forma- 
tion of  a  club  by  journeymen  boot-makers,  one  of  the  regulations  of 
which  was,  that  no  person  belonging  to  it  should  work  for  any  master 
workmen  who  should  employ  any  journeyman  or  other  workman  who 
should  not  be  a  member  of  such  club.     Such  a  combination  docs  not 
appear  to  possess  any  feature  of  illegalit}',  for  the  law  will  not  intend, 
without  proof,  that  it  was  formed  for  the  accomplishment  of  any  illegal 
end.     "  Such  an  association,"  says  Chief  Justice  Shaw,  in  his  opinion, 
"  might  be  used  to  afford  each  other  assistance  in  times  of  poverty, 
sickness,  and  distress  ;  or  to  raise  their  intellectual,  moral,  or  social 
condition  ;  or  to  make  improvements   in   their  art ;  or  for  other   pur- 
poses."   The  force  of  this  association  was  not  concentrated  with  a  view 
to   be  exerted   to  oppress    any    individual,   and    it   was   consequently 
entirely  unlike  the  ease  of  men  who  take  advantage  of  their  position, 
to  use  the  power,  by  a  concert  of  action,  which   such  position  gives 
them,  to  compel   their  employer  to  a  certain   line  of  conduct.     The 
object  of  the  club  was  to  establish  a  general  rule  for  the  regulation  of 
its  members  ;  but  the  object  of  the  combination,  in  the  case  now  before 
this  court,  was  to  occasion  a  particular  result  which  w\as  mischievous, 
and  by  means  which  were  oppressive.     The  two  cases  are  not  parallel, 
and  must  be  governed  by  entirely  different  considerations. 

The  motion  to  quash  should  not  prevail.^ 

1  See  State  v.  Glidden,  55  Conn.  46.  -Ed. 


882  CKUMP   V.    COMMONWEALTH.  [CHAP.  XIV. 


CRUMP  V.    COMMONWEALTH. 

Supreme  Court  of  Appeals  of  V'irginia.     1888. 

[Reported  84  Va.  927.] 

Fauntleroy,  J.^     The  next  error  assigned  is  tlie  action  of  the  court 
in  giving  the  instruction  asked  for  by  the  Commonwealth,  as  follows  : 
"  If  the  jury  believe,  from   the  evidence,  that  the  defendant  Crump 
entered  into  an  agreement  with  one  or  more  of  the  defendants,  whereby- 
they  undertook  to  coerce  the  firm  of  Baughman  Brothers  to  discharge 
from  their  employment,  against  the  will  of  the  said   firm,  certain  per- 
sons then  in  their  employment,  and  to  take  into  their  employment  cer- 
tain other  persons  that  the  said  Baughman  Brothers  did  not  wish  to 
take  into  their  employment,  then  they  are  instructed   that  said   agree- 
ment  was  unlawful ;  and  if  they  believe   further,   from   the  evidence, 
that  in  pursuance  and  to  carry  out  said  agreement,  he,  the  defendant, 
threatened  any  of  the  customers  of  the  said  Baughman  Brothers,  they 
(the  said  persons  making  said  agreement)  would  injure  the  business  of 
such  customers,  by  intimidating  their  customers  and  making  them  afraid 
to  continue  their  patronage  of  the  customers  of  the  said  Baughman 
Brothers,  then  they  must  find  the  defendant  guilty."    The  instruction 
plainly  and  correctly  expounds   the  law  against  unlawful  combination 
and  guilty  conspii^acy  to  interfere  with,  molest,  break  up,  and  ruin  the 
legitimate,  licensed    business   of    peaceable,   useful,  industrious,    and 
honest  citizens,  and  to  accompUsh  this  end  by  the  threat  and  intimida- 
tion of  doing  "  all  in   the  power"  of  the  conspirators  to  "  break  up 
and  destroy  the  business"  of  all  the  existing  or  future  customers  of 
Baughman  Brothers,  who   should  thereafter  buy  '^anything  from  the 
said  firm  of  Baughman  Brothers,  or  employ  them,  the  said  Baughman 
Brothers,  in  their  said  business  as  printers."     And  the  instruction,  so 
far  from  being  a   mere  declaration   of  abstract  law,  is  a  direct   and 
proper  application  of  the  law  to  the  case  put   in  the  indictment  and 
made  by  the  evidence.    It  is  next  to  impracticable  to  extend  this  opinion 
bv  reciting  the  evidence  in  detail,  further  than  we   shall  do  when  we 
come  to  consider  the  error  assigned   upon  the  admissibility  and  suflS- 
ciency  of  the  evidence  in  the  record  to  justify  the  verdict. 

The  instructions  which  were  asked  for  by  the  defendant  and  refused 
by  the  court  were  properly  refused,  as  they  did  not  correctly  expound 
the  law,  and  were  unwarranted  by  the  evidence.  And,  more  than  the 
defect  of  having  no  predication  in  the  evidence,  they  utterly  and  adroitly 
ignore  the  facts  proved  of  the  evil  intent  of  the  defendant  and  his  con- 
federates to  do  a  wanton,  causeless  injury  and  ruin,  to  compel  and 
coerce  Baughman  Brothers  to  give  up  the  control  and  conduct  of  theit 

1  Part  ouly  of  the  opinion  is  given. 


SECT.  III.]  CRUMP   V.   COMMONWEALTH.  8H:^ 

own  long-established,  useful,  ami  independent  business  to  tlie  absolute 
dictation  and  control  of  a  combination  of  the  defendant  and  others 
styling  themselves  "  Richmond  Typographical  Union,  No.  90;"  and  to 
do  tliis  by  the  obtrusion,  terrorism,  excommunication,  and  obloquy  of 
the  '•'boycott"  against  Baughman  Brotliers  and  all  their  customers  in 
Richmond,  Lynchburg,  and  throughout  Virginia  and  North  Carolina, 
ad  infinitum,  till  they  force  the  conquest  and  submission  of  all  resist- 
ance to  their  demands  and  self-constituted  management,  —  a  reign  of 
terror,  which,  if  not  checked  and  punished  in  the  beginning  by  the  law, 
will  speedily  and  inevitably  run  into  violence,  anarch}",  and  mob  tvranny. 
We  come  now  to  the  main  question  involved  in  this  appeal,  whether 
the  evidence  set  forth  in  this  record  presents  a  conspiracy  at  connnon 
law.  The  determination  of  this  question  is,  indeed,  tiie  ol)jcct  sought, 
as  we  noL  only  infer  from  the  paltry  line  of  five  dollars  imposed  by 
the  verdict,  but  b\-  the  intimation  in  argument  b}-  the  able  and  accom- 
plished counsel  for  the  defendant. 

Is  '^  boNCotting,"  as  resorted  to  and  practised  by  the  conspirators  in 
this  case,  allowable  under  the  laws  of  Virginia? 

For  a  legal  definition  or  explanation  of  the  meaning  and  practical 
effect  of  the  cabalistic  word,  as  vvell  as  for  a  pertinent  exposition  of 
the  law  applicable  to  the  facts  of  this  case,  we  refer  to  the  admirable 
opinion  of  Judge  Wellford  of  the  Circuit  Court  of  the  city  of  Rich- 
mond, in  the  case  of  Baughman  Brothers  v.  Askew,  Va.  L  J.,  April, 
No.  196,  and  also  to  the  decision  of  the  Supreme  Court  of  Connecticut 
in  the  case  of  State  v.  Glidden,  55  Conn.  76.  In  that  case  the  court 
says:  '•'•We  may  gather  some  idea  of  its  [boycotting]  real  mean- 
ing, however,  by  a  reference  to  the  circumstances  in  which  the 
word  originated.  Those  circumstances  are  thus  narrated  b}'  Mr. 
Justin  McCartiiy,  an  Irish  gentleman  of  learning  and  ability,  who 
will  be  recognized  as  good  authority  :  '  Captain  Boycott  was  an  p]nglish- 
nian,  an  agent  of  Lord  Erne,  and  a  farmer  of  Lough  Mask,  in  the 
wild  and  beautiful  district  of  Connemara.  In  his  capacit}'  as  agent  he 
had  served  notice  upon  Lord  Erne's  tenants,  and  the  tenantry  sud- 
denly retaliated,  etc.  His  life  appeared  to  be  in  danger ;  he  had  to 
claim  police  protection.  ...  To  prevent  civil  war,  the  authorities  had 
to  send  a  force  of  soldiers  and  police  to  Lough  Mask,  and  Captain 
Boycott's  harvest  was  brought  in  and  his  potatoes  dug  by  the  armed 
Ulster  laborers,  guarded  always  by  the  little  army.'  "  The  court  pro- 
ceeded to  say  :  ''  If  this  is  a  correct  picture,  the  thing  we  call  a  boycott 
originally  signified  violence,  if  not  murder.  .  .  .  But  even  here,  if  it 
means,  as  some  high  in  the  confidence  of  the  trades  union  assert,  abso- 
lute  ruin  to  the  business  of  the  person  bo3'Cotted,  unless  he  yields, 
then  it  is  criminal."  The  essential  idea  of  boycotting,  whether  in  Ire- 
land or  the  United  States,  is  a  confederation,  generall}'  secret,  of  many 
persons  whose  intent  is  to  injure  another  b}-  preventing  any  and  all  per- 
sons from  doing  business  with  him,  through  fear  of  incurring  the  dis- 
pleasure, persecution,  and  vengeance  of  the  conspirators. 


884  CRUMP   V.    COMMONWEALTH.  [CHAP.  XIV. 

In  the  case  of  State  v.  Donaldson,  32  N.  J.  L.  151,  Chief  Justice 
Beasley,  in  delivering  the  opinion  of  the  court,  said  :  "It  appears 
to  me  that  it  is  not  to  be  denied  that  the  alleged  aim  of  this  com- 
bination was  unlawful ;  the  effort  was  to  dictate  to  this  employer 
whom  he  should  discharge  from  his  employ.  This  was  an  unwar- 
rantable interference  with  the  conduct  of  his  business,  etc.  If  the 
manufacturer  can  be  compelled  in  this  way  to  discharge  two  or  more 
bands,  he  can,  by  similar  means,  be  coerced  to  retain  such  workmen  as 
the  conspirators  may  choose  to  designate.  So  his  customers  may  be 
proscribed,  and  his  business,  in  other  respects,  controlled.  I  cannot 
regard  such  a  course  of  conduct  as  lawful." 

Chief  Justice  Shaw,  in  the  case  of  Commonwealth  v.  Hunt,  4  Met. 
Ill,  said:  "The  law  is  not  to  be  hoodwinked  by  colorable  pre- 
tences ;  it  looks  at  truth  and  reaUty  through  whatever  disguises  it 
may  assume.  Ii  is  said  that  neither  threats  nor  intimidations  were 
used  ;  but  no  man  can  fail  to  see  that  there  may  be  threats,  and  there 
may  be  intimidations,  and  there  may  be  molesting,  and  there  may 
be  obstructing  (which  the  jury  are  quite  satisfied  have  taken  place, 
f'-om  all  the  evidence  in  the  case),  without  there  being  any  express 
words  used  by  which  a  man  should  show  any  violent  threats  towards 
another,  or  any  express  intimidation.  .  .  .  An  intention  to  create  alarm 
in  the  mind  of  a  manufacturer,  and  so  to  force  his  assent  to  an  altera- 
tion in  the  mode  of  carrying  on  his  business,  is  a  violation  of  law  :  " 
Regina  v.  Rowlands,  5  Cox,  C.  C.  436,  4G2,  463  ;  Doolittle  v.  Schan- 
bacher,  20  Cent.  L.  J.  229. 

Upon  the  trial  of  boycotters  in  New  York,  Judge  Barrett  said: 
"  The  men  who  walk  up  and  down  in  front  of  a  man's  shop  may  be 
guilty  of  intimidation,  though  they  never  raise  a  finger  or  utter  a  word. 
Their  attitude  may,  nevertheless,  be  that  of  menace.  They  may  intim- 
idate by  their  numbers,  their  pleadings,  their  methods,  their  circulars, 
and  their  devices." 

It  matters  little  what  are  the  means  adopted  by  combinations  formed 
to  intimidate  employers,  or  to  coerce  other  journeymen,  if  the  design 
or  the  effect  of  them  is  to  interfere  with  the  rights  or  to  control  the 
free  action  of  others.  No  one  has  a  right  to  be  hedged  in  and  pro- 
tected from  competition  in  business  ;  but  he  has  a  right  to  be  free  from 
wanton,  malicious,  and  insolent  interference,  disturbance,  or  annoy- 
ance. Every  man  has  the  right  to  work  for  whom  he  pleases,  and  for 
any  price  he  can  obtain  ;  and  he  has  the  right  to  deal  with  and  asso- 
ciate with  whom  he  chooses  ;  or  to  let  severely  alone,  arbitrarily  and 
contemptuously,  if  he  will,  anybody  and  everybody  upon  earth.  But 
this  freedom  of  uncontrolled  and  unchallenged  self-will  does  not  give 
or  imply  a  right,  either  by  himself  or  in  combination  with  others,  to 
disturb,  injure,  or  obstruct  another,  either  directly  or  indirectly,  in  his 
lawful  business  or  occupation,  or  in  his  peace  and  security  of  life. 
Every  attempt  by  force,  threat,  or  intimidation  to  deter  or  control  an 
employer  in  the  determination  of  whom  he  will  employ,  or  what  wages 


SECT.  III.]  CEUMP   V.    COMMONWEALTH.  885 

he  will  pay,  is  an  act  of  wrong  and  oppression  ;  and  any  and  every 
combination  for  sueli  a  purpose  is  an  unlawful  conspiracy.  The  law 
will  protect  the  victim,  and  punish  the  movers  of  any  such  coml)ina- 
tion.  In  law,  the  ortence  is  tlie  combination  for  the  pur[)ose,  and  no 
overt  act  is  necessary  to  constitute  it :  State  v.  Wilson,  30  Conn.  507  ; 
State  V.  Donaldson,  supra  :  Walker  v.  Cronin,  107  Mass.  564  ;  Carew 
V.  Rutherford,  106  Mass.  10,  15  ;  Master  Stevedores'  Association  v. 
Walsh,  2  Daly,  12;  Walsby  y.  Auley,  3  L.  T.,  n.  s.,666  ;  Regina  v. 
Duffield,  5  Cox,  C.  C.  432  ;  Parker  c.  Griswold,  17  Conn.  302;  Spring- 
head Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551  ,  Gilbert  v.  Mickle,  4 
Sand.  Ch.  357. 

A  wanton,  unprovoked  interference  by  a  combination  of  many  with 
the  business  of  another,  for  the  purpose  of  constraining  that  other  to 
discharge  faithful  and  long-tried  servants,  or  to  employ  whom  he  does 
not  wish  or  will  to  employ  (an  interference  intended  to  produce,  and 
likely  to  produce,  annoyance  and  loss  to  that  business)  will  be  restrained 
and  punished  by  the  criminal  law  as  oppressive  to  the  individual,  inju- 
rious to  the  prosperity  of  the  community,  and  subversive  of  the  peace 
and  good  order  of  societ}'. 

The  recent  case  of  State  v.  Glidden,  already  referred  to,  decided  by 
the  Supreme  Court  of  Connecticut,  is  both  in  principle  and  features 
identical  with  the  case  under  review.  The  Carrington  Publishing  Com- 
pany had  in  their  employ  a  number  of  printers  known  as  ''  non-union 
men,"  or  "rats."  The  Typographical  Union,  the  Knights  of  Labor, 
the  Trades'  Council,  the  Cigar-makers'  Union,  and  other  affiliated  secret 
organizations,  waited  upon  the  company  and  demanded  that  their  office 
be  made  a  "  union  office"  within  twenty-four  hours.  Upon  the  refusal 
of  the  company  to  make  their  office  a  "union  office,"  a  boycott  was 
instituted  against  them,  which,  though  not  openly  published  as  in  this 
case,  was  fully  proved.  The  court  in  its  opinion  said  :  "  If  the  defend- 
ants have  the  right  which  they  claim,  then  all  business  enterprises  are 
alike  suljject  to  their  dictation.  No  one  is  safe  in  engaging  in  busi- 
ness, for  no  one  knows  whether  his  business  affairs  are  to  be  directed 
by  intelligence  or  ignorance,  —  whether  law  and  justice  will  protect  the 
business,  or  brute  force,  regardless  of  law,  will  control  it ;  for  it  must 
be  remembered  that  the  exercise  of  the  power,  if  conceded,  will  by  no 
means  be  confined  to  the  matter  of  employing  help.  Upon  the  same 
principle,  and  for  the  same  reasons,  the  right  to  determine  what  busi- 
ness others  shall  engage  in,  when  and  where  it  shall  be  carried  on,  etc., 
will  be  demanded,  and  must  be  conceded.  The  principle,  if  it  once 
obtains  a  foothold,  is  aggressive,  and  is  not  easily  checked.  It  thrives 
on  what  it  feeds  on,  and  is  insatiate  in  its  demands.  More  requires 
more.  If  a  large  body  of  irresponsible  men  demand  and  receive  power 
outside  of  law,  over  and  above  law,  it  is  not  to  be  expected  that  they 
will  be  satisfied  with  a  moderate  and  reasonable  use  of  it.  All  history 
proves  that  abuses  and  excesses  are  inevitable.  The  exercise  of  irre- 
sponsible power  by  men,  like  the  taste  of  human  blood  by  tigers,  creates 


886  CRUMP   V.   COMMONWEALTH.  [CHAP.  XIV. 

an  unappeasable  appetite  for  more.  .  .  .  Confidence  is  the  corner-stone 
of  all  business,  —  confidence  that  the  government,  through  its  courts, 
will  be  able  to  protect  their  rights;  but  if  their  rights  [of  business 
men]  are  such  only  as  a  secret,  irresponsible  organization  is  willing  to 
give,  where  is  that  confidence  which  is  essential  to  the  prosperity  of  the 
country?  .  .  .  The  end  would  be  anarch}-,  pure  and  simple,  and  the 
subversion,  not  only  of  all  business,  but  also  of  law  and  the  govern- 
ment itself.  They  [defendants]  had  a  right  to  request  the  Carrington 
Publishing  Company  to  discharge  its  workmen  and  employ  themselves, 
and  to  use  all  proper  argument  in  support  of  their  request,  but  they 
had  no  right  to  say,  '  You  shall  do  this,  or  we  will  ruin  30ur  business/ 
Much  less  bad  the\'  a  right  to  ruin  its  business.  The  fact  that  it  is 
designed  as  a  means  to  an  end,  and  that  end  in  itself  considered  is  a 
lawful  one,  does  not  divest  the  transaction  of  its  criminalitj'." 

The  defendant  lays  great  stress  upon  the  case  of  Commonwealth 
V.  Hunt,  4  Met.  Ill,  as  authority  to  sustain  the  legality  of  bo3'cot- 
ting  ;  but  there  is  an  obvious  distinction  between  that  case  and  that 
of  this  defendant.  That  was  a  club  or  combination  of  journeymen 
boot-makers  simply  to  better  their  own  condition,  and  it  had  no  aim 
or  means  of  aggression  upon  the  business  or  rights  of  others ;  they 
simplv  had  regulations  for  themselves,  and  did  not  combine  or  operate 
for  a  result  mischievous,  meddlesome,  and  oppressive  towards  others. 
But,  even  in  that  case,  the  court,  after  supposing  the  case  of  a  com- 
bination for  the  ultimate  and  laudable  object  of  reducing,  by  mere 
competition,  the  price  of  bread  to  themselves  and  their  neighbors,  said  : 
"The  legality  of  such  an  association  will,  therefore,  depend  upon  the 
means  to  be  used  for  its  accomplishment.  If  it  is  to  be  carried  into 
effect  by  fair  and  honorable  means,  it  is,  to  say  the  least,  innocent ;  if 
b}'  falsehood  or  force,  it  may  be  stamped  with  the  character  of  con- 
spirac}'."  Force  may  be  operated  either  physically  or  mechanically  ;  or 
it  may  >)e  coercion  by  fear,  threat,  or  intimation  of  loss,  injury,  obloquy 
or  suflTering. 

The  evidence  in  this  case  shows  that  while  Baughman  Brothers  wert 
engaged  in  their  lawful  business  as  stationers  and  printers,  the  plaintift 
in  error  and  the  other  members  of  the  Richmond  Typographical  Union, 
No.  90,  conspired  to  compel  Baughman  Brothers  to  make  their  office  a 
"  union  office,"  and  to  compel  them  not  to  employ  any  printer  who  did 
not  belong  to  the  said  union ;  that  upon  the  refusal  of  Baughman 
Brothers  to  make  their  office  (or  business)  a  "  union  office,"  the  plain- 
tiff in  error  and  others  composing  the  said  Richmond  Typographical 
Union,  No.  90,  conspired  and  determined  to  boycott  the  said  firm  of 
Baughman  Brothers,  as  they  had  threatened  to  do,  and  sent  circulars  to  a 
great  many  of  the  customers  of  the  said  firm  informing  them  that  they 
had,  "  with  the  aid  of  the  Knights  of  Labor  and  all  the  trades  organiza- 
tions in  this  city  [Richmond],  boycotted  the  establishment  of  Messrs. 
Baughman  Brothers,"  and  formally  notifying  the  said  customers  that  the 
names  of  all  persons  who  should  persist  in  trading,  patronizing,  or  dealing 


SECT.  III.]  CRUMP   V     COMMONWEALTH.  887 

with  Biuigluuan  Brothers,  after  being  notified  of  the  bo3"cott,  would  be 
pubHshed  weekly  in  the  Labor  Herald  as  a  "  black-list,"  who,  in 
their  turn,  would  be  boycotted  until  the\-  agreed  to  withdraw  their 
patronage  from  Baughraan  Brothers;  and,  accordingly,  the  employees 
of  Baughmun  Brothers  were  mercilessl}-  hounded  bj-  publication 
after  publication,  for  months,  in  the  Labor  Herald  (which  was  the 
boasted  engine  of  the  boycotting  conspirators),  wherebj-  it  was  at- 
tempted to  excite  public  feeling  against  them,  and  prevent  them  from 
obtaining  even  board  and  shelter ;  and  the  names  of  the  customers  and 
patrons  of  the  said  firm  were  published  in  the  said  sheet  under  the  stand- 
ing head  of  ''•  black-list." 

The  length  of  this  opinion  will  preclude  the  mention  of  even  a  tithe 
of  these  incendiary  publications  week  after  week  for  months  ;  but  not 
only  Baughman  Brothers  and  their  employees  and  their  customers,  but 
the  hotels,  boarding-houses,  public  schools,  railroads,  and  steamboats 
conducting  the  business  travel  and  transportation  of  the  city  were  listed 
and  published  under  the  obloquy  and  denunciation  of  the  "  black-list." 
One  or  two  specimens  will  suffice  :  ^'  Boycott  Baughman  Brothers  and 
all  who  patronize  them."  "  Watch  out  for  Baughman  Brothers'  '  rats,' 
and  find  out  where  the}-  board.  It  is  dangerous  for  honest  men  to 
board  in  the  same  house  with  these  creatures.  They  are  so  mean  that 
the  air  becomes  contaminated  in  which  they  breathe."  "  Bo3'cott 
Baughman  Brothers  every  day  in  the  week."  "  BoA'cott  Baughman 
Brothers,  because  they  are  enemies  of  honest  labor."  "  Boycott 
Baughman  Brothers'  customers  wherever  you  find  them."  "  The  Lynch- 
burg boys  will  begin  to  play  their  hand  on  Messrs.  Baughman 's 
boycotted  goods  in  a  short  time.  The  battle  will  not  be  fought  in 
Richmond  only,  but  in  all  Virginia  and  North  Carolina  will  be  raised 
the  cry,  '  Away  with  the  goods  of  this  tyrannical  firm.'"  "Let  our 
friends  remember  it  is  the  patronage  of  the  Chesapeake  and  Ohio, 
Richmond,  Fredericksburg,  and  Potomac,  Richmond  and  Danville,  and 
Richmond  and  Alleghany  railroads  that  is  keeping  Baughman  Brothers 
up."  "  We  are  sony  to  see  the  Exchange  Hotel  on  the  black-list. 
There  will  be  two  thousand  strangers  in  this  city  in  October,  none  of 
whom  will  patronize  a  hotel  or  boarding-house  whose  name  appears  on 
that  list."  "The  boycott  on  Baughman  Brothers  is  working  so  good 
that  a  man  cannot  bu}'  a  single  bristol-board  from  the  '  rat'  firm  with- 
out having  his  name  put  upon  the  black-list."  "  The  old  '  rat'  estab- 
lishment is  about  to  cave  in.  Let  it  fall  with  a  crash  that  will  be  a 
warning  to  all  enemies  of  labor  in  the  future." 

It  was  proved  that  the  conspirators  declared  their  set  purpose  and 
persistent  eflfort  to  "crush"  Baughman  Brothers;  that  the  minions  of 
the  boycott  committee  dogged  the  firm  in  all  their  transactions,  fol- 
lowed their  delivery  wagon,  secured  the  names  of  their  patrons,  and 
used  every  means  short  of  actual  physical  force  to  compel  them  to 
cease  dealing  with  Baughman  Brothers,  therebj'  causing  them  to  lose 
from  one  hundred  and  fifty  to  two  hundred  customers,  and  ten  thousand 


MORRIS    RUN    COAL   CO.   V.    BARCLAY   COAL   CO.      [CHAP.  XIV. 

dollars  of  net  profit.  The  acts  alleged  and  proved  in  this  case  are 
anlawfiil,  and  incompatible  witli  the  prosperity,  peace,  and  civilization 
of  the  countr}- ;  and  if  they  can  be  perpetrated  with  impunity  by  com- 
binations of  irresponsible  cabals  or  cliques,  there  will  be  the  end  of 
government,  and  of  society  itself.  Freedom,  individual  and  associated, 
is  the  boon  and  the  boasted  policy  and  peculium  of  our  country  ;  but  it 
is  liberty  regulated  by  law  ;  and  the  motto  of  the  law  is  Sic  utere  tuo 
ut  alienum  non  Icedas. 

The  plaintiff  in  error  was  properly  convicted ;  and  the  judgment  of 
the  hustings  court  complained  of  is  affirmed. 


MORRIS   RUN   COAL   COMPANY  v.   BARCLAY   COAL 
COMPANY. 

Supreme  Court  of  Pennsylvania.     187L 

[Reported  68  Pa.  173.] 

Agnew,  J.^  The  effects  produced  on  the  public  interests  lead  to  the 
consideration  of  another  feature  of  great  weight  in  determining  the 
illegality  of  the  contract,  to  wit :  the  combination  resorted  to  by  these 
five  companies.  Singly  each  might  have  suspended  deliveries  and  sales 
of  coal  to  suit  its  own  interests,  and  miglit  have  raised  the  price,  even 
though  this  might  have  been  detrimental  to  the  public  interest.  There 
is  a  certain  freedom  which  must  be  allowed  to  every  one  in  the  manage- 
ment of  his  own  affairs.  When  competition  is  left  free,  individual 
error  or  folly  will  generally  find  a  correction  in  the  conduct  of  others. 
But  here  is  a  combination  of  all  the  companies  operating  in  the  Bloss- 
burg  and  Barclay  mining  regions,  and  controlling  their  entire  produc- 
tions. They  have  combined  together  to  govern  the  supply  and  tlie 
price  of  coal  in  all  the  markets  from  the  Hudson  to  the  Mississippi 
rivers,  and  from  Pennsylvania  to  the  lakes.  This  combination  has  a 
power  in  its  confederated  form  which  no  individual  action  can  confer. 
The  public  interest  must  succumb  to  it,  for  it  has  left  no  competition 
free  to  correct  its  baleful  influence.  When  the  supply  of  coal  is  sus- 
pended, the  demand  for  it  becomes  importunate,  and  prices  must  rise. 
Or  if  the  supply  goes  forwards  the  price  fixed  by  the  confederates  must 
accompany  it.  The  domestic  hearth,  the  furnaces  of  the  iron-master, 
and  the  fires  of  the  manufacturer,  all  feel  the  restraint,  while  many  de- 
pendent hands  are  paralyzed,  and  hungry  mouths  are  stinted.  The 
influence  of  a  lack  of  supply  or  a  rise  in  the  price  of  an  article  of  such 
prime  necessitv,  cannot  be  measured.  It  permeates  the  entire  mass  of 
community,  and  leaves  few  of  its  members  untouched  by  its  withering 

1  Only  an  extract  from  the  opinion  is  given. 


SECT.  III.]         MORRIS   RUN   COAL   CO.    V.    B.4RCLAY    COAL   CO.  889 

blight.  Such  a  combination  is  more  than  a  contract,  it  is  an  offence. 
"I  take  it,"  said  Gibson,  J.,  "a  combination  is  criminal  whenever  the 
act  to  be  done  has  a  necessary  tendency  to  prejudice  the  public  or  to 
oppress  individuals,  bj-  unjustly  subjecting  them  to  the  power  of  the 
confederates,  and  giving  effect  to  the  purpose  of  the  latter,  whether  of 
extortion  or  of  mischief."  Commonwealth  v.  Carlisle,  Brightly's  Rep. 
40.  In  all  such  combinations  where  the  purpose  is  injurious  or  unlaw- 
ful, the  gist  of  the  offence  is  the  conspirac}'.  Men  can  often  do  by  the 
combination  of  man}-,  what  severalh'  no  one  could  accomplish,  and 
even  what  when  done  by  one  would  be  innocent.  It  was  held,  in  The 
Commonwealth  v.  Eberle,  3  S.  &  R.  9,  that  it  was  an  indictable  con- 
spiracy for  a  portion  of  a  German  liUtheran  congregation  to  combine 
and  agree  together  to  prevent  another  portion  of  the  congregation,  b\' 
force  of  arms,  from  using  the  English  language  in  the  worship  of  God 
among  the  congregation.  So  a  confederacy  to  assist  a  female  infant  i:o 
escape  from  her  father's  control  with  a  view  to  marry  her  against  his  will, 
is  indictable  as  a  conspiracy  at  common  law,  while  it  would  have  been  no 
criminal  offence  if  one  alone  had  induced  her  to  elope  with  and  many 
him.  Mifflin  v.  Commonwealth,  5  W.  &  S.  461.  One  man  or  many  may 
hiss  an  actor ;  but  if  the}'  conspire  to  do  it  they  maj'  be  punished. 
Per  Gibson,  C.  J.,  Hood  v.  Palm,  8  Barr,  238  ;  2  Rnssel  on  Crimes,  556. 
And  an  action  for  a  conspirac}'  to  defame  will  be  supported  though  the 
words  be  not  actionable,  if  spoken  by  one.  Hood  v.  Palm,  supra. 
"Defamation  by  the  outcry  of  numl)ers,"  sa3-s  Gibson,  C.  J.,  "is  as 
resistless  as  defamation  by  the  w-ritten  act  of  an  individual.''  And 
saj's  Coulter,  J.,  "  The  concentrated  energy  of  several  combined  wills, 
operating  simultaneous!}'  and  by  concert  upon  one  individual,  is  dan- 
gerous even  to  the  cautious  and  circumspect,  but  when  brought  to  bear 
upon  the  unwar}'  and  unsuspecting,  it  is  fatal."  Twitchell  v.  Common- 
wealth, 9  Barr,  211.  There  is  a  potency  in  numbers  when  combined, 
which  the  law  cannot  overlook,  where  injury  is  the  consequence.  If 
the  conspirac}'  be  to  commit  a  crime  or  an  unlawful  act,  it  is  easy  to 
determine  its  indictable  character.  It  is  more  ditHcult  when  the  act  to 
be  done  or  purpose  to  be  accomplished  is  innocent  in  itself.  Then  the 
offence  takes  its  hue  from  the  motives,  the  means,  or  the  consequences. 
If  the  motives  of  the  confederates  be  to  oppress,  the  means  they  use" 
unlawful,  or  the  consequences  to  others  injurious,  their  confederation 
will  become  a  conspiracy.  Instances  are  given  in  The  Commonwealth 
V.  Carlisle,  Bright.  R.  40.  Among  those  mentioned  as  criminal  is  a 
combination  of  employers  to  depress  the  wages  of  journeymen  below 
what  they  would  be,  if  there  were  no  resort  to  artificial  means  ;  and  a 
combination  of  the  bakers  of  a  town  to  hold  up  the  article  of  bread,  and 
by  means  of  the  scarcity  thus  produced  to  extort  an  exorbitant  price 
for  it.  The  latter  instance  is  precisely  parallel  with  the  present  case. 
It  is  the  effect  of  the  act  upon  the  public  wliicli  gives  that  case  and  this 
its  evil  aspect  as  the  result  of  confederation  ;  for  any  baker  might 
choose  to  hold  up  his  own  bread,  or  coal  operator  his  coal,  rather  than 


890  MORRIS    EUN   COAL    CO.    V.   BARCLAY    COAL   CO.       [CHAP.  XIV. 

to  sell  at  ruling  prices  ;  but  wlien  he  destroys  competition  by  a  combi- 
nation with  oi/hers,  the  public  can  buy  of  no  one. 

In  Rex  V.  De  Berenger,  3  M.  &  S.  67,  it  was  held  to  be  a  con 
spiracy  to  combine  to  raise  the  public  funds  on  a  particular  day  by  false 
rumors.  The  purpose  itself,  said  Lord  EUenborough,  is  mischievous 
—  it  strikes  at  the  price  of  a  valuable  commodity  in  the  market,  and 
if  it  gives  it  a  fictitious  price  by  means  of  false  rumors,  it  is  a  fraud 
levelled  against  the  public,  for  it  is  against  all  such  as  may  possibly 
have  anything  to  do  with  the  funds  on  that  [)articular  day.  Every 
"corner,"  in  the  language  of  the  day,  whether  it  be  to  affect  the 
price  of  articles  of  commerce,  such  as  breadstuff's,  or  the  price  of  vend- 
ible stocks,  when  accomplished  by  confederation  to  raise  or  depress 
the  price  and  operate  on  the  markets,  is  a  conspiracy.  The  ruin  often 
spread  abroad  b^'  these  heartless  conspiracies  is  indescribable,  fre- 
quently filling  the  land  with  starvation,  povert}',  and  woe.  Every 
association  is  criminal  whose  object  is  to  raise  or  depress,  the  price 
of  labor  be3'ond  what  it  would  bring  if  it  were  left  without  artifi- 
cial aid  or  stimulus.  Rex  v.  Byerdike,  1  M.  &  S.  179.  In  the  case  of 
such  associations  the  illegality  consists  most  frequently  in  the  means 
employed  to  carry  out  the  object.  To  fix  a  standard  of  prices  among 
men  in  the  same  employment,  as  a  fee  bill,  is  not  in  itself  criminal,  but 
may  become  so  when  the  parties  resort  to  coercion,  restraint,  or  penal- 
ties upon  the  employed  or  employers,  or  what  is  worse  to  force  of 
arms.  If  the  means  be  unlawful  the  combination  is  indictable.  Com- 
monwealth V.  Hunt,  4  Met.  111.  A  conspiracy  of  journeymen  of  any 
trade  or  handicraft  to  raise  the  wages  by  entering  into  combination  to 
coerce  journeymen  and  master-workmen  employed  in  the  same  branch 
of  industry  to  conform  to  rules  adopted  by  such  combination  for  the 
purpose  of  regulating  the  price  of  labor,  and  carrying  such  rules  into 
effect  by  overt  acts,  is  indictable  as  a  misdemeanor.  3  AVhart.  C.  L., 
citing  The  People  v.  Fisher,  14  Wend.  9.  Without  multiplying  ex- 
amples, these  are  sufficient  to  illustrate  the  true  aspect  of  the  case 
before  us,  and  to  show  that  a  combination  such  as  these  companies 
entered  into  to  control  the  supply  and  price  of  the  Blossburg  and  Bar- 
clay region-s  is  illegal,  and  the  contract  therefore  void.^ 

1  "  Owners  of  goods  have  a  right  to  expect  at  an  auction  that  there  will  be  an  open 
competition  from  the  public  ;  and  if  a  knot  of  men  go  to  an  auction  upon  an  agree- 
ment among  themselves  of  the  kind  that  has  been  described,  they  are  guilty  of  an 
indictable  offeuce,  and  may  be  tried  for  a  conspiracy."  Gurney,  B.,  in  Levi  v.  Levi, 
9  C.  &  P.  239.  —  Ed. 


SECT.  I.j  THE   INDICTMENT.  891 


CHAPTER   XV.  -  "     fj"" 

THE  INDICTMENT. 


SECTION  I. 

General  Requisites  of  an  Indictment. 

2  Hawkins,  Pleas  of  the  Crown,  ch.  25,  Sect.  55.  No  periphrasis 
or  circumlocution  whatsoever  will  supply  those  words  of  art  which  the 
law  hath  appropriated  for  the  description  of  the  offence,  as  murdravit, 
in  an  indictment  of  murder ;  ceint,  in  an  indictment  of  larceny ;  may- 
hemiarit,  in  an  indictment  of  maim ;  felonice,  in  an  indictment  of  any 
felony  whatever;  burglariter,  or  hurgidariter,  or  else  hurgalariter^  in 
an  indictment  of  burglary ;  proditorie,  in  an  indictment  of  treason ; 
contra  ligeantiae  suae  debitum,  in  an  indictment  of  treason  against  the 
king's  person. 

2  Hawkins,  Pleas  of  the  Crown,  ch.  25,  Sect.  62.  Where  one  mate- 
rial part  of  an  indictment  is  repugnant  to  another  the  whole  is  void ; 
for  the  law  will  not  admit  of  such  nonsense  and  absurdities  in  legal 
proceedings,  which  if  suffered,  would  soon  introduce  barbarism  and 
confusion.  Also  it  takes  off  much  from  the  credit  of  an  indictment 
that  those  by  whom  it  is  found  have  contradicted  themselves.  And 
upon  this  ground  ...  it  hath  been  adjudged  that  an  indictment  for 
selling  iron  with  false  weights  and  measures  is  void,  not  only  because 
it  is  absurd  to  suppose  that  iron  could  be  sold  by  measure,  but  also  be- 
cause it  is  repugnant  and  inconsistent  that  it  should  be  so  sold  at  the 
same  time  when  it  was  sold  by  weight.^ 

1  Every  indictment  or  information  ought  to  contain  a  complete  description  of 
such  facts  and  circumstances  as  constitute  the  crime,  without  inconsistency  or  repug- 
nancy ;  and,  except  in  particular  cases,  where  the  precise  technical  expressions  are 
required  to  be  used,  there  is  no  rule  that  other  words  shall  be  employed  than  such  as 
are  in  ordinary  use;  or  that  in  indictments  or  other  pleadings  a  different  sense  is  to  be 
put  upon  them  than  what  they  bear  in  ordinary  acceptation.  And  if,  where  the  sense 
may  be  ambiguous,  it  is  sufficiently  marked  by  the  context,  or  other  means,  in  what 
sense  they  are  intended  to  be  used,  no  objection  can  be  made  on  tlie  ground  of  repug- 
nancy, which  only  exists  where  a  sense  is  annexed  to  words  which  is  either  absolutely 
inconsistent  therewith,  or  being  apparently  so,  is  not  accompanied  by  anything  to  ex- 
plain or  define  them.  If  the  sense  be  clear,  nice  exceptions  ought  not  to  be  regarded ; 
in  respect  of  which  Lord  Hale  (2  Hale's  P.  C.  193)  says  that  "  more  offenders  escape 
by  the  over-easy  ear  given  to  exceptions  in  indictments  tlian  by  their  own  innocence, 
and  many  heinous  and  crying  offences  escape  by  these  unseemly  niceties,  to  the  re- 
proach of  the  law,  to  the  shame  of  tlie  government,  and  to  the  encouragement  of  vil- 
lany  and  the  dishonor  of  God."  —  Lord  Ellenborough,  C.  J.,  in  Rex  v.  Stevens.  5  East, 
244,  259. 


/ 


892  STATE    V.    BROWN.  [CHAP.  XV. 

2  Hawkins,  Pleas  of  the  Crown,  8th  ed.,  ch.  25,  Sects.  118,  119,  126, 
127,  128.  As  to  the  ninth  general  point  of  this  chapter,  viz. :  What 
ought  to  be  the  form  of  the  caption  of  an  indictment.  I  shall  take  it 
for  granted  that  every  such  caption  is  erroneous,  which  doth  not  set 
forth  with  proper  certainty  both  the  court  in  which,  and  the  jurors  by 
whom,  and  also  the  time  and  place  at  which,  the  indictment  was  found. 
As  to  the  first  of  these  particulars,  viz. :  What  certainty  is  necessary 
in  the  caption  of  an  indictment  in  respect  to  the  court  before  which  it 
was  found.  It  is  certain  that  every  such  caption  must  shew  that  the 
indictment  was  taken  before  such  a  court  as  had  jurisdiction  over  the 
offence  indicted. 

As  to  the  second  particular,  viz.  :  What  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  jurors  b}'  whom  it  was  found. 
It  seems  agreed  that  no  caption  of  an  indictment,  whether  found  at  a 
court-leet,  or  other  inferior  court,  can  be  good  without  expressly  shew- 
ing that  the  jurors  who  found  it  were  of  the  county,  city,  or  burgh,  or 
other  precinct  for  which  the  court  was  holden,  and  that  they  were  at 
least  twelve  in  number,  and  also  that  they  found  the  indictment  upon 
their  oaths. 

As  to  the  third  particular,  viz. :  What  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  time  when  it  was  found.  It 
seems  agreed  that  such  caption  must  set  forth  a  certain  day  and  year 
■when  the  court  was  holden  before  which  the  indictment  was  found. 

As  to  the  fourth  particular,  viz.  :  Wliat  certainty  is  necessary  in  the 
caption  of  an  indictment  in  respect  of  the  place  where  it  was  found.  It 
seems  agreed  that  if  such  caption  either  set  forth  no  place  at  all  where 
the  indictment  was  found,  or  do  not  shew  with  sufincient  certainty  that 
the  place  set  forth  is  within  the  jurisdiction  of  the  court  before  which  it 
was  taken,  [it]  is  insufficient. 


STATE  V.    BROWN. 
Supreme  Court  of  North  Carolina.     1819. 

[Reported  3  Murphy,  224.] 

The  indictment  against  the  defendant  was  in  the  following  words, 
to  wit : 

"The  Jurors  for  the  State,  upon  their  oaths,  present  that  John 
Brown,  late  of  the  County  of  Camden,  shop-keeper,  on  the  first  day  of 
February,  1817,  and  continually  thereafter  up  to  the  time  of  taking 
this  inquisition  at  Camden  aforesaid,  was,  and  yet  is,  a  common 
Sabbath-t/eaker  and  prophaner  of  the  Lord's  day,  commonly  called 
Sunday ;  and  that  the  said  John  Brown,  on  the  day  aforesaid,  being 
Lord's  day,  and  on  divers  other  days  and  times,  as  well  before  as  since, 
being  Lord's  day,  did  then  and  there  keep  and  maintain  a  certain  open 
shop,  and  on  the  days  and  times  aforesaid,  there  sold  and  exposed  to 


SECT.    I.]  DAMON'S    CASE.  893 

sale  divers  goods,  wares,  and  spirituous  liquors,  to  negroes  and  others, 
to  the  great  damage  of  the  good  citizens  of  this  State,  and  against  the 
peace  and  dignity  of  the  State." 

The  defendant  submitted  ;  but  the  court  entertaining  a  doubt  whether 
the  facts  set  forth  in  the  indictment  constituted  an  indictable  offence  as 
therein  set  forth,  sent  the  case  to  this  court ;  and 

Henofkson.  J.,  delivered  the  opinion  of  the  court:  — 
The  iudkiiiunt  charges  that  the  defendant  is  a  common  Sabbath- 
breaker  and  piophaner  of  the  Lord's  day.  If  it  had  stopped  here,  it 
would  certainly  have  been  insufficient,  as  it  would  not  show  how,  or  in 
wh:it  iiiaiiiu'r.  he  was  a  common  Sabbath-breaker  and  prophaner  of  the 
Lord's  day.  The  court,  upon  an  inspection  of  the  record,  must  be 
able  to  perceive  the  alleged  criminal  act :  for  an  indictment,  as  was 
once  well  observed  from  this  bench  by  Judge  Lowrie,  is  a  compound  of 
law  and  fact.  The  latter  part  of  the  indictment  charges  that  the  de- 
fendant kept  an  open  shop  and  sold  divers  goods,  wares,  and  spirituous 
liquors  to  negroes  and  otliers  on  the  Sabbath.  This  offence,  as  charged, 
is  not  punishable  by  indictment ;  for  if  the  act  can  be  intended  to  be 
lawful,  it  shall  be  so  presumed,  unless  it  be  charged  to  be  done  under 
circumstances  which  render  it  criminal,  and  be  so  found  by  a  jury.  For 
aught  that  appears  to  the  contrary,  this  sale  might  have  been  to  the 
lame  or  weary  traveller,  or  to  others  to  whom  it  was  a  merit  to  sell,  in- 
stead of  a  crime  ;  and  nothing  shall  be  intended  against  a  defendant. 
And  if  this  were  the  Sabbath-breaking  spoken  of  in  the  foregoing  part 
of  the  indictment,  taking  the  whole  together,  the  defendant  well  might 
have  done  all  charged  against  him,  and  yet  have  committed  no  crime ; 
and  as  this  may  have  been  the  case,  we  are  bound  to  presume  it ;  at 
least,  not  to  presume  to  the  contrary. 

The  judgment  must  he  arrested. 


DAMON'S   CASE. 
Supreme  Judicial  Court  of  Maine.     1829. 

[Reported  6  Maine,  148.] 

In  this  case  the  defendant  was  indicted  for  that  he,  having  been  law- 
fully married  at  Reading  in  Massachusetts,  in  1805,  was  unlawfully 
again  married  to  another  woman,  at  Farmington  in  this  county,  in  1812, 
the  former  wife  being  still  alive ;  "  against  the  peace  of  said  State, 
and  against  the  form  of  the  statute  in  such  case  made  and  provided." 

The  defendant  moved  for  a  new  trial,  because,  4th,  the  indictment 
•was  defective.^ 

Parris,  J.     The  only  remaining  question  presented  in  this  case  is 

as  to  the  sufficiency  of  the  indictment.     The  case  finds  that  the  second 

marriage  of  the  defendant  was  in  this  county,  in  1812.     Supposing  it 

to  have  been  proved  or  admitted  at  the  trial,  that  at  the  time  of  the 

1  Part  of  the  case  not  relating  to  question  of  pleading  is  omitted. 


894  DAMON'S    CASE.  [CIIAP.  XV. 

second  marriage  the  first  wife  was  alive  (and  this  fact  must  necessarily 
have  been  established  to  the  satisfaction  of  the  jury),  the  offence  set 
forth  in  the  indictment  was  committed  at  that  time,  and  consequently 
against  the  peace  of  the  then  existing  government  and  the  laws  thereof. 
It  could  not  have  been  an  offence  against  the  peace  of  the  State  of 
Maine,  or  in  violation  of  its  laws,  for  at  that  time  Maine  had  not  been 
invested  with  the  sovereign  power  of  a  State.  The  territory  was  a 
portion  of  Massachusetts,  and  the  inhabitants  were  amenable  to  the 
laws  of  that  sovereignty. 

Whoever  commits  an  offence  indictable  either  by  statute  or  at  com- 
mon law  is  guilty  of  a  breach  of  the  peace  of  that  government  which 
exercises  jurisdiction,  for  the  time  being,  over  the  place  where  such 
offence  is  committed ;  and  in  setting  forth  the  offence  an  omission  to 
charge  it  as  having  been  done  against  the  peace  of  that  government  is 
fatal.  The  Queen  v.  Lane,  3  Salk.  199;  2  Ld.  Raymond,  1034.  It 
is  even  insufficient,  if  charged  as  against  the  peace  generally,  without 
naming  the  particular  sovereignty,  whose  peace  is  alleged  to  have  been 
violated.  2  Hale's  P.  C.  188.  So,  also,  if  it  be  an  offence  created  by 
statute,  as  in  this  case,  the  indictment  must  allege  it  to  have  been  com- 
mitted against  the  form  of  the  statute,  or  it  will  be  fatal.  2  Mass. 
Rep.  116. 

Now  it  would  be  preposterous  to  allege  the  offence  to  have  been  com- 
mitted against  a  statute  of  the  State  of  Maine ;  for  at  that  time  Maine 
had  no  statutes,  and  the  statute  touching  this  subject  which  has  since 
been  enacted  by  our  legislature  is  materially  different,  especially  in  the 
penal  part,  from  the  statute  of  Massachusetts. 

As  the  indictment,  in  this  case,  sets  forth  a  statute  offence  committed 
in  the  year  1812,  by  a  person  subject  to  the  laws  of  Massachusetts,  in. 
a  place  then  under  the  jurisdiction  of  that  government,  it  consequently 
must  have  been  against  the  peace  of  that  sovereignty  and  that  only; 
and  not  being  so  alleged,  the  prosecution  cannot  be  sustained.  The 
authorities  by  which  our  opinion  on  this  point  is  supported  are : 
2  Hale's  P.  C.  188;  2  Hawk.  ch.  25,  sect.  95;  Yelv.  66  ;  4  Com.  Dig. 
Indictment,  G.  6,  and  Rex  v.  Lookup,  3  Burr.  1903.  In  the  latter 
case,  Lookup  was  indicted  for  perjury.  The  fact  was  charged  to  have 
been  committed  in  the  time  of  the  late  king,  whereas  the  indictment 
concluded  against  the  peace  of  the  present  king.  After  trial,  convic- 
tion and  sentence,  Lookup  brought  a  writ  of  error  returnable  in  Parlia- 
ment, when  the  following  question  was  put  by  the  lords  to  the  judges : 
"  whether  the  perjury  being  alleged  in  the  indictment  to  have  been  com- 
mitted in  the  time  of  the  late  king,  and  charged  to  be  against  the  peace 
of  the  now  king  is  fatal,  and  renders  the  indictment  insufficient."  The 
Lord  Baron  delivered  the  unanimous  opinion  of  the  judges  in  the  affirma- 
tive; and  upon  this  point  the  judgment  of  the  King's  Bench  was  re- 
versed and  the  defendant  discharged. 

Conformably  to  the  report  of  the  judge  who  tried  the  cause,  the  ver- 
dict must  be  set  aside  and  a  new  trial  granted. 


SECT.   I.J 


COMMONWEALTH    V.   TRAY. 


895 


COMMONWEALTH  v.  PRAY. 
Supreme  Judicial  Court  of  Massachusetts.     1832. 

[Reported  13  Pick.  359.] 

The  defendant  was  indicted  as  follows,  on  the  statute  of  1786,  e.  68, 

§  1. 

"  The  jurors,  &c.,  present  that  Edward  Pray  of  Braintree,  in  the 
County  of  Norfolk,  trader,  on  the  thirtieth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  thirty,  and  on  divers 
other  days  between  that  day  and  the  twentieth  day  of  December  next 
following,  at  Braintree  aforesaid,  did  presume  to  be  and  was  a  common 
seller  of  wine,  beer,  .ale,  cider,  brandy,  rum,  and  other  strong  liquors 
by  retail,  in  less  quantities  than  twenty-eight  gallons,  and  that  delivered 
and  carried  away  all  at  one  time,  and  did  at  said  Weymouth,  duriug 
all  the  time  between  the  days  aforesaid.,  commonly  and  habitually  sell 
to  divers  persons  to  the  jurors  unknoton,  wine,  beer,  ale,  cider,  brandy, 
rum,  and  other  strong  liquors  by  retail,  in  less  quantities  than  twenty- 
eight  gallons,  and  that  delivered  and  carried  away  all  at  one  timey 
he,  the  said  Edward  Pray,  not  being  first  duly  licensed  therefor  accord- 
ing to  law,"  &c. 

The  defendant  demurred  generally  to  the  indictment. 

Kingsbury,  in  support  of  the  demurrer,  objected  to  the  indictment  on 
the  grounds  of  uncertainty  and  repugnancy.  The  allegations  that  the 
offence  was  committed  at  Braintree  and  at  "said  Weymouth,"  are  re- 
pugnant, and  the  place  of  the  offence  is  rendered  uncertain.  2  Hale's 
P.  C.  180;  Bac.  Abr.  Indictment,  O  4;  Hawk.  bk.  2,  c.  25,  §  83; 
Cholmley's  case,  Cro.  Car.  465  ;  Wingfield's  case,  Cro.  Eliz.  739.  The 
general  rule  is  that  an  indictment  should  set  forth  the  particular  facts 
constituting  the  offence  charged.  There  are  some  exceptions,  as  in  the 
cases  of  a  common  barrator  and  a  common  scold,  but  they  do  not  em- 
brace the  offence  for  which  this  defendant  is  indicted.  2  Hale's  P.  C. 
182;  Hawk.  bk.  2,  c.  25,  §  59.  The  second  allegation  in  the  indict- 
ment is  descriptive  of  the  offence,  and  is  repugnant  to  the  first  allega- 
tion, and  for  both  of  these  reasons  it  cannot  be  rejected  as  surplusage. 
Rex  V.  Holt,  2  Leach,  676  ;  s.  c.  5  T.  R.  446;  3  Stark.  Ev.  1529  ;  Com. 
Dig.  Pleader,  E  12 ;  Co.  Lit.  303  b;  Gould's  PI.  155,  c.  3,  §  172. 

Austin,  Attorney-General,  for  the  Commonwealth,  said  that  the  clause 
in  the  indictment  printed  in  Italics  might  be  rejected  as  surplusage; 
1  Chit.  Crim.  Law,  238  ;  Commonwealth  v.  Hunt,  4  Pick.  252  ;  and  that 
it  has  been  the  invariable  practice,  ever  since  this  statute  was  passed, 
to  set  forth  the  offence  in  this  general  form,  and  that  the  case  came 
within  the  reasons  of  the  exceptions  in  regard  to  common  barrators  and 
common  scolds. 

Morton,  J.,  delivered  the  opinion  of  the  court.  This  case  comes 
before  us  on  general  demurrer ;  and  the  only  subject  for  our  considera- 


J 


896  COMMONWEALTH    V.    PKA.Y.  [CHAP.  XV. 

tion  is  the  sufficiency  of  the  indictment.  It  is  framed  upon  the  first  sec- 
tion of  St.  1786,  c.  68.  That  section  contains  two  distinct  prohibitions, 
enforced  by  different  penalties.  The  first  clause  provides  that  no  person 
may,  without  being  duly  licensed,  "  presume  to  be  a  common  victualler, 
innholder,  taverner,  or  seller  of  wine,  beer,  ale,  cider,  brandy,  rum,  or 
any  strong  liquors,  by  retail,"  under  a  penalty  of  twenty  pounds.  The 
second  clause  provides  that  if  any  person  shall,  without  license,  "•  sell  any 
spirituous  liquors,  or  any  mixed  liquors,  part  of  which  is  spirituous," 
he  shall  incur  a  penalty  of  not  less  than  forty  shillings,  nor  more  than 
six  pounds.  The  first  offence  consists  in  presuming  to  be  a  common 
victualler,  or  common  seller,  &c.  ;  the  second,  in  actually  selling.  Al- 
though the  first  offence  may  not  be  completed  without  committing  the 
second,  yet  the  second  may  be,  without  committing  the  first. 

The  indictment  contains  two  distinct  charges.  The  one,  in  general 
terms,  that  the  defendant  did  presume  to  be  and  was  a  common  seller, 
&c.,  —  in  the  words  of  the  statute.  The  other,  that  the  defendant  did 
commonly  and  habitually  sell  to  divers  persons  to  the  jurors  unknown, 
wine,  &e.  The  first  is  laid  with  a  proper  venue,  viz.,  "■  at  Braintree 
aforesaid,"  Braintree  having  just  before  been  described  as  in  the  County 
of  Norfolk.  In  the  second,  the  offence  is  alleged  to  have  been  com- 
mitted "  at  said  Weymouth ;  "  whereas  We3'mouth  had  not  before  been 
named.  This  unquestionably  is  a  mere  clerical  error.  But  it  is  incon- 
sistent with  the  former  venue,  and  clearly  insuflficient.  Haw^k,  bk.  2, 
c.  25,  §  83 ;  2  Hale's  P.  C.  180. 

The  next  inquiry  is  whether  this  defective  averment  may  not  be  re- 
jected as  surplusage.  It  does  not  contradict  any  other  averment  in  the 
indictment ;  it  is  not  descriptive  of  the  identity  of  the  charge,  or  of 
anything  essential  to  it,  nor  does  it  in  any  degree  tend  to  show  that  no 
offence  was  committed.  3  Stark.  Ev.  1529  ;  1  Chit.  Crim.  Law,  238 ; 
Gould's  PL  154,  155,  and  authorities  there  cited  ;  Commonwealth  v. 
Hunt,  4  Pick.  252. 

The  second  allegation,  embracing  all  between  the  words  "all  at  one 
time,"  where  they  first  occur,  and  the  words  "  he  the  said  Edward,"  may 
properly  be  rejected  as  surplusage.  Indeed  it  must  be  excluded,  for  it 
contains  no  legal  averment ;  and  the  indictment  must  be  treated  as  if 
originally  drawn  without  it.  But  as  it  cannot  aid  the  indictment,  so  it 
"will  not  injure  it.      Utile  per  inutile  non  vitiatur. 

The  indictment  describes  the  offence  in  the  very  words  of  the  statute. 
This  usually  is  not  sufficient.  The  established  rules  of  pleading  require 
the  essential  facts  and  circumstances  to  be  particularly,  unambiguously, 
and  certainly  stated,  that  the  court  may  know  whether  they  amount  to 
a  violation  of  the  law,  and  what  punishment,  if  any,  they  require.  A 
general  charge,  as  that  a  man  is  a  common  thief,  common  forestaller, 
or  common  champertor,  &c.,  is  clearly  insufficient.  Hawk.  bk.  2,  c.  25, 
§29. 

But  this  general  rule,  useful  and  important  as  it  may  be,  is  not  with- 
out its  exceptions  ;  for  there  are  classes  of  cases  to  which  it  does  not 


SECT.   I.]  COMMONWEALTH   V,    PRAY.  897 

apply.  Wherever  the  crime  consists  of  a  series  of  acts,  they  need  not 
be  specially  described,  for  it  is  not  each  or  all  the  acts  of  themselves, 
but  the  practice  or  habit  which  produces  the  principal  evil  and  consti- 
tutes the  crime. 

-^  Thus,  it  is  sufficient  to  charge  a  person  with  being  a  common  bar- 
rator, or  a  common  scold.  Hawk.  bk.  2,  c.  25,  §  59.  And  it  is  not 
necessary  to  set  forth  any  particular  acts  of  barratry  or  of  scolding ; 
for  it  is  the  general  practice,  and  not  the  particular  acts  which  consti- 
tute the  offence.  They  go  to  make  up  the  evidence  of  the  crime,  but 
are  not  the  crime  itself.  And  it  is  never  necessary  in  pleadings,  civil 
or  criminal,  to  set  forth  the  evidence. 

There  is  another  class  of  cases,  which,  though  not  very  similar  to  the 
above,  seem  to  come  within  the  same  exception.  It  is  sufficient  to 
charge  a  person  generally  with  keeping  a  house  of  ill-fame,  a  disorderly 
house,  or  a  common  gaming  house.  Hawk.  bk.  2,  c.  25,  §  57;  Davis's 
Prec.  of  Indictments,  140,  198  ;  Rex  v.  Higginson,  2  Burr.  1233.  Now 
although  all  the  acts  which  make  up  these  general  offences  are  in  them- 
selves unlawful,  it  is  not  necessary  to  set  them  forth.  The  several  acts 
may  be  indicted  and  punished  separately,  but  the  keeping  the  house  iS 
a  distinct  offence,  and  as  such  liable  to  punishment. 

This  indictment  comes  within  these  principles.  Although  to  make 
out  the  statute  offence  it  may  be  necessary  to  prove  particular  acts, 
such  as  entertaining  company  or  selling  spirits,  yet  these  acts  are  only 
evidence  of  the  general  charge,  and  may  be  proved,  but  need  not  be 
alleged. 

There  is  also  one  other  class  of  cases,  well  settled,  as  we  think,  which 
are,  in  principle,  similar  to  the  case  under  consideration.  It  is  made 
the  duty  of  towns  to  keep  in  repair  all  highways  within  their  limits ; 
and  for  a  neglect  of  this  duty  they  are  liable,  not  only  to  indictment, 
but,  if  any  individual  injury  occurs  by  reason  of  it,  to  a  civil  action. 
St.  1786,  c.  81.  In  indictments  and  declarations  on  this  statute,  which 
are  of  almost  daily  occurrence,  the  practice  never  has  been  to  set  forth 
minutely  the  defects  in  the  highway.  But  a  general  allegation,  that  a 
certain  highway  is  out  of  repair,  ruinous,  and  unsafe,  has  always  been 
deemed  sufficient.  Hawk.  bk.  2,  c.  25,  §  68 ;  Davis's  Prec.  of  Indict- 
ments, 195  ;  Rider  v.  Smith,  3  T.  R.  766. 

The  object  of  the  rule  requiring  the  charge  to  be  particularly,  cer- 
tainly, and  technically  set  forth,  is  threefold.  First,  to  apprise  the 
defendant  of  the  precise  nature  of  the  charge  made  against  him.  Sec- 
ondly, to  enable  tlie  court  to  determine  whether  the  facts  constitute  an 
offence  and  to  render  the  proper  judgment  thereon.  And  thirdly,  that 
the  judgment  may  be  a  bar  to  any  future  prosecution  for  the  same 
offence.     3  Stark.  Ev.  1527. 

The  allegations  remaining  in  this  indictment  entirely  satisfy  all  these 
objects.  They  fully  apprise  the  defendant  of  the  nature  of  the  charge 
preferred  against  him.  When  it  is  alleged  that  at  a  certain  time  he 
did  presume  to  be  and  was  a  common  innholder  and  common  seller  of 


898  COMMONWEALTH    V.    HERSEY.  [CHAP,  XV. 

spirits,  &c.,  he  cannot  be  ignorant  of  the  offence  which  is  imputed  to 
him.  Besides,  the  court,  according  to  the  modern  practice,  in  all  cases 
of  general  allegations,  take  care  that  the  defendant  shall  not  be  sur- 
prised, but  that  he  shall  seasonably  be  furnished  with  such  specifica- 
tions and  particular  statements  as  may  be  necessary  to  enable  him  to 
prepare  for  his  trial,  and  to  meet  all  the  proof  which  may  be  brought 
against  him.  It  is  admitted  that  if  the  second  allegation  were  sufli- 
cient,  the  whole  indictment  would  be  good.  Now  it  is  apparent  that 
this  second  clause  gives  no  information  as  to  the  nature  of  the  offence, 
or  of  the  particular  facts  to  be  proved,  not  contained  in  the  first. 

That  the  indictment  is  sufficient  to  enable  the  court  to  render  the 
proper  judgment,  and  that  it  will  be  a  bar  to  all  future  prosecutions 
for  the  same  offence,  we  cannot  doubt.  In  this  case  the  time  enters 
into  the  essence  of  the  offence,  and  with  entire  certainty  fixes  the  iden- 
tity. The  defendant  can  never  again  be  punished  for  being  a  common 
seller,  &c.,  within  the  time  described  in  the  indictment.  But  even  if 
the  identity  were  not  proved  by  the  record,  it  might,  as  in  many  other 
cases,  be  established  by  proof  aliunde. 

Upon  the  whole,  the  court  are  of  opinion,  that  the  second  clause  in 
the  indictment  may  properly  be  rejected  as  surplusage  ;  that  the  indict- 
ment, without  it,  contains  all  the  allegations  necessary  to  its  support; 
and  therefore  that  the  demurrer  must  be  overruled. 


COMMONWEALTH   v.    HERSEY. 
Supreme  Judicial  Court  of  Massachusetts.     1861. 

[Reported  2  Allen,  173.] 

\ 

Bigelow,  C.  J.  The  ...moUQ^-i'3, -arrest  of  judgment  in  the  present 
case  is  founded  on  the  omission  to  aver  that  the  defendant,  in  admin- 
Tstering  poison  to  the  deceased,  did  it  with  an  intent  to  kill  and  mur- 
der. No  direct  authority  or  adjudication  has  been  cited  by  the  counsel 
for  the  prisoner  in  support  of  the  position  that  such  an  averment  is 
necessary  or  essential  to  the  validity  of  the  indictment.  They  do,  how- 
ever, rely  on  forms  or  precedents,  which  are  found  in  text  books  of  ap- 
proved authority  and  in  reported  cases,  in  which  the  allegation  that 
the  poison  was  administered  with  intent  to  kill  is  distinctly  set  forth. 
Wharton's  Precedents,  (2d  ed.)  123-138;  Archb.  Crira.  PI.  (5th  Amer. 
ed.)  432;  2  Cox,  C.  C.  Appendix,  III;  Davis's  Precedents,  182-186. 
But,  on  the  other  hand,  it  is  certainly  true  that  there  are  precedents 
entitled  to  equal  respect  with  those  cited  by  the  prisoner's  counsel,  in 
which  no  such  averment  is  made,  as  a  separate  and  substantive  allega- 
tion essential  to  the  description  of  the  crime,  and  distinct  from  the 
general  prefatory  clause,  in  which  a  general  intent  to  kill  is  stated 
without  any  averment  of  time  and  place.  2  Stark.  Crim.  PI.  12,  15, 
18:   1   East  P.  C.  c.  5,   §   116;  3  Chit.  Crim.  Law,  773,    779;  The 


I 


SECT.    I.]  COMMONWEALTH    V.    HERSEY.  89'^ 

King  V.  Clark,  1  Brod.  &  Bing.  473  ;  Regina  v.  Alison  8  C  &  P. 
418.  So  far  therefore  as  the  question  now  raised  depends  on  author- 
it}',  it  may  fairly  be  said  to  be  an  open  one.  It  would  be  giving  too 
much  force  to  mere  precedents  of  forms,  which  often  contain  unneces- 
sary and  superfluous  averments,  to  hold  that  a  particular  allegation  is 
essential  to  the  validity  of  an  indictment,  because  it  has  sometimes,  or 
even  generally,  been  adopted  by  text  writers  or  by  cautious  pleaders. 

We  are  then  to  determine  the  question  as  one  depending  on  the  gen- 
eral rules  of  criminal  pleading  applicable  to  the  description  of  similar 
offences,  'rhere  can  be  no  doubt  that,  in  every  ease,  to  render  a  party 
responsible  for  a  felony,  a  vicious  will  or  wicked  intent  must  concur 
with  a  wrongful  act.  But  it  does  not  follow  that,  because  a  man  can- 
not commit  a  felony  unless  he  has  an  evil  or  malicious  mind  or  will,  it 
is  necessary  to  aver  the  guilty  intent  as  a  substantive  part  of  the  crime 
iu  giving  a  technical  description  of  it  in  the  indictment.  On  the  con- 
trary, as  the  law  presumes  that  ever}'  man  intends  the  natural  and  neces- 
sary consequences  of  his  acts,  it  is  suflScient  to  aver  in  apt  and  technical 
words  that  a  defendant  committed  a  criminal  act,  without  alleging  the 
specific  intent  with  which  it  was  done.  In  such  case,  the  act  neces- 
sarily..inol«des  the  intent.  Thus,  in  charging  the  crime  of  burglary,  it 
is  not  necessary  to  aver  that  the  breaking  and  entering  a  house  was 
done  with  an  intent  to  steal.  It  is  sufficient  to  charge  the  breaking 
and  entering  and  an  actual  theft  by  the  defendant.  The  reason  is, 
that  the  fact  of  stealing  is  the  strongest  possible  evidence  of  the  in- 
tent, and  the  allegation  of  the  theft  is  equivalent  to  an  averment  of 
that  intent.  Commonwealths.  Hope,  22  Pick.  1,  5;  2  East  P.  C.  c.  15, 
§  24.  So  iu  an  indictment  for  murder  by  blows  or  stabs  with  a  deadly 
weapon,  it  is  never  necessary  to  allege  that  they  were  inflicted  with  an 
intent  to  kill  or  murder.  The  law  infers  the  intent  from  proof  that  the 
acts  were  committed,  and  that  death  ensued.  The  averment,  therefore, 
of  the  criminal  act  comprehends  the  evil  or  wicked  intention  with  which 
it  was  committed.  The  true  distinction  seems  to  be  this :  when  by  the 
common  law  or  by  the  provision  of  a  statute  a  particular  intention  is  es-    |  / 

sential  to  an  offence,  or  a  criminal  act  is  attempted  but  not  accomplished, 
and  the  evil  intent  only  can  be  punished,  it  is  necessary  to  allege  the 
intent  with  distinctness  and  precision,  and  to  support  the  allegation  by 
jproaf.  On  the  other  hand,  if  the  offence  does  not  rest  merely  in  ten- 
dency, or  in  an  attempt  to  do  a  certain  act  with  a  wicked  purpose,  but 
consists  in  doing  an  unlawful  or  criminal  act,  the  evil  intention  will  be 
presumed  and  need  not  be  alleged,  or,  if  alleged,  it  is  a  mere  formal 
averment,  which  need  not  be  proved.  In  such  case,  the  intent  is  nothing 
more  than  the  result  which  the  law  draws  from  the  act,  and  requires  no 
proof  beyond  that  which  the  act  itself  supplies.  1  Stark.  Crim.  PI.  165. 
1  Chit.  Crim.  Law,  233  ;  The  King  v.  Philipps,  6  East,  474 ;  1  Hale  P.  C. 
455  ;  Commonwealth  i\  Merrill,  14  Gray,  415  ;  To  illustrate  the  applica- 
tion of  the  rule,  take  the  case  of  an  indictment  for  an  assault  with  an  at- 
tempt to  commit  a  rape.     The  act  not  being  consummated,  the  gist  of 


900  COMMONWEALTH    V.    HERSEY.  [cHAP.  XV. 

the  offence  consists  in  the  intent  with  which  the  assault  was  committed. 
It  must  therefore  be  distinctly  alleged  and  proved.  But  in  an  indictment 
for  the  crime  of  rape,  no  such  averment  is  necessary.  It  is  sufficient 
to  allege  the  assault,  and  that  the  defendant  had  carnal  knowledge  of 
a  woman  by  force  and  against  her  will.  The  averment  of  the  act  in- 
cludes the  intent,  and  proof  of  the  commission  of  the  offence  draws  with 
it  the  necessary  inference  of  the  criminal  intent.  The  same  is  true  of 
indictments  for  assault  with  intent  to  kill,  and  murder.  In  the  former, 
the  intent  must  be  alleged  and  proved.  In  the  latter,  it  is  only  neces- 
sary to  allege  and  prove  the  act.  The  application  of  this  principle  to 
the  case  at  bar  is  decisive  of  the  question  raised  by  the  present  motion. 
There  is  nothing  in  the  nature  of  the  crime  of  murder  by  poison  to 
distinguish  it  from  homicide  by  other  unlawful  means  or  instruments  so 
as  to  render  it  necessary  that  it  should  be  set  out  with  fuller  averments 
concerning  the  intention  with  which  the  criminal  act  was  committed. 
If  a  person  administers  to  another  that  which  he  knows  to  be  a  deadly 
poison,  and  death  ensues  therefrom,  the  averment  of  these  facts  in 
technical  form  necessarily  involves  and  includes  the  intent  to  take  life. 
It  is  the  natural  and  necessary  consequence  of  the  act  done,  from 
which  the  law  infers  that  the  party  knew  and  contemplated  the  result 
which  followed,  and  that  it  was  committed  with  the  guilty  intention  to 
take  life. 

It  was  urged  by  the  counsel  for  the  prisoner,  as  an  argument  in  sup- 
port of  the  insufficiency  of  the  indictment,  that  every  fact  stated  in  the 
indictment  might  have  been  done  by  the  defendant,  and  yet  he  might 
have  committed  no  offence  ;  that  is,  that  a  person  might  administer  to 
another  that  which  he  knew  to  be  a  deadly  poison,  from  which  death  en- 
sued, innocently  and  without  any  intent  to  do  bodily  harm.  In  a  certain 
sense  this  is  true.  A  physician,  for  example,  might  in  the  exercise  of 
due  care  and  skill  give  to  his  patient  a  medicine  of  a  poisonous  nature, 
in  the  honest  belief  that  it  would  cure  or  mitigate  disease,  but  which 
from  unforeseen  and  unexpected  causes  actually  causes  death.  And 
the  same  is  true  of  many  other  cases  of  homicide  produced  by  other 
means  than  poison.  Take  the  case  of  a  murder  alleged  to  have  been 
committed  by  stabs  or  cuts  with  a  knife.  Such  wounds  may  be  in- 
flicted innocently  and  for  a  lawful  purpose.  A  sui-geon  in  performing 
a  delicate  and  difficult  operation,  by  a  slight  deflection  of  the  knife 
which  the  most  cautious  skill  could  not  prevent,  might  inflict  a  wound 
which  destroys  life.  But  it  has  never  been  deemed  necessary,  because 
certain  acts  which  cause  death  may  be  done  without  any  wicked  or 
criminal  intent,  to  aver  in  indictments  for  homicide,  that  the  person 
charged  acted  with  an  intent  to  take  life.  The  corrupt  and  wicked  pur- 
pose with  which  a  homicidal  act  is  done  is  sufficiently  expressed  by  the 
averment  that  it  was  committed  wilfully  and  with  malice  aforethought ; 
and  this  allegation  may  be  always  disproved  by  showing  that  the  act 
happened  pe/-  infortunium,  or  was  otherwise  excusable  or  justifiable. 

Motion  in  arrest  of  judgment  overruled. 


SECT.    I.]  HIRN    V.    STATE.  901 

HIRN   V.  STATE. 
Supreme  Court  of  Ohio.     1852. 

[Reported  1  Ohio  St.  15.] 

Bartley,  J.^  It  may  be  important  to  notice  the  question  of  the  suf- 
ficiency of  the  indictment,  for  the  purpose  of  settling  a  rule  of  pleading 
in  regard  to  which  the  authorities  are  not  clear  and  somewhat  conflict- 
ing. This  question  is  now  relied  on  by  the  plaintiff  in  error,  although 
not  raised  in  the  Common  Pleas. 

It  is  claimed  that  the  indictment  is  defective  on  the  ground  that  it 
does  not  contain  a  negative  averment,  that  the  sale  of  spirituous  liquor 
charged  was  not  for  medicinal  or  pharmaceutical  purposes.  The  penal 
offence  is  described  or  defined  in  the  first  section  of  the  act  of  1851,  and 
at  the  close  of  the  section  is  a  proviso  in  these  words  :  ' '  Provided,  that 
nothing  contained  in  this  section  shall  be  so  construed  as  to  make  it 
unlawful  to  sell  any  spirituous  liquors  for  medicinal  and  pharmaceu- 
tical purposes." 

The  rule  laid  down  by  the  authorities  on  this  subject  is  generally 
defined  in  this  manner :  that  when  a  criminal  or  penal  statute  contains 
an  exception  in  the  enacting  clause,  that  exception  must  be  negatived 
In^ the  indictment ;  but  where  the  statute  contains  provisos  and  excep- 
tions in  distinct  clauses,  it  is  not  necessary  to  allege  that  the  defen- 
dant does  not  come  with  the  exceptions,  nor  to  negative  the  provisos. 
1  Chitty's  Crira.  Law,  284,  In  some  of  the  authorities  the  negative 
allegation  is  made  to  depend  upon  the  place  in  the  statute  where  it 
occurs,  1  Term  R.  141 ;  in  others  upon  the  question  whether  the  ex- 
ception or  proviso  qualifies  the  description  of  the  offence.  In  some, 
the  rule  is  made  to  depend  upon  whether  the  exception  be  a  matter  of 
description  in  the  negative,  the  affirmative  of  which  would  be  a  good 
excuse  for  the  defendant,  2  Hawk.  255,  112;  while  in  others,  it  is 
made  to  depend  upon  the  distinction  between  a  proviso  in  the  descrip- 
tion of  the  offence,  and  a  subsequent  exemption  from  the  penalty  under 
certain  circumstances.  This  is  Lord  Mansfield's  rule  in  Spiers  v. 
Parker,  1  Term  R.  86,  87. 

The  confusion  which  seems  to  exist  in  regard  to  this  rule  has  arisen 
from  the  various  modes  adopted  and  the  indefinite  language  used  in 
defining  it,  and  the  multiplicity  of  forms  in  which  exceptions,  qualifica- 
tions, and  exemptions  are  introduced  into  statutes.  What  constitutes 
the  enacting  clause,  in  the  meaning  of  some  of  the  authorities,  is  not 
clear.  A  clause  is  a  distinct  member  or  subdivision  of  a  sentence,  in 
which  the  words  are  inseparably  connected  with  each  other  in  sense, 
and  cannot,  with  propriety,  be  separated  by  a  point;  yet  very  fre- 
quently the  language  creating  and  describing  the  offence  and  fixing  the 
penalty,  includes  several  distinct  clauses  and  sometimes  a  whole  section. 

1  Part  of  the  case  not  relating  to  the  question  of  pleading  is  omitted. 


902  COMMONWEALTH    V.    PERlilGO.  [CHAP.  XV. 

It  is  requisite  that  every  indictment  should  contain  a  substantial 
description  of  all  the  circumstances  descriptive  of  the  offence  as  defined 
in  the  statute,  so  as  to  bring  the  defendant  precisely  within  it.  And 
the  only  substantial  reason  for  requiring  this  negative  averment  at  all 
is  that  without  it  the  description  of  the  offence  would  not  be  complete. 
When,  therefore,  the  matter  of  the  proviso  or  exception  in  the  statute, 
whether  it  be  embraced  within  what  has  been  termed  the  enacting  clause 
or  not,  enters  into  and  becomes  a  part  of  the  description  of  the  offence, 
or  a  material  qualification  of  the  language  which  defines  or  creates  the 
offence,  the  negative  allegation  in  the  indictment  is  requisite.  But 
where  it  is  a  subsequent  exemption,  or  occurs  in  a  separate  and  distinct 
clause  or  part  of  the  statute,  disconnected  with  the  statutory  descrip- 
tion of  the  offence,  the  negative  averment  is  unnecessary. 

In  the  case  before  the  court,  the  matter  of  the  proviso  in  the  first 
section  of  the  act  of  1851,  points  directly  to  the  character  of  the  offence, 
is  in  the  same  sentence  with  it,  and  made  a  material  qualification  in  the 
statutory  description  of  it. 

It  is  the  opinion  of  the  majority  of  the  court  that  the  indictment 
should  have  contained  the  negative  averment,  that  the  sale  of  the  liquor 
was  not  for  medicinal  or  pharmaceutical  purposes,  and  is,  therefore, 
defective. 

The  judgment  of  the  court  of  Common  Pleas  is  reversed. 

Thurman,  J.,  having  been  of  counsel  for  the  plaintiff  in  error,  did 
not  sit  in  this  case. 

CoRwiN,  J.,  dissented  from  the  opinion  of  the  court  as  to  the  suffi- 
ciency of  the  indictment,  but  concurred  in  the  decision  on  the  other 
points. 


/^' 


COMMONWEALTH  v.   PERRIGO. 
Court  of  Appeals  of  Kentucky.     1860. 

[Reported  3  Metcalfe,  5.] 

Judge  Duval  delivered  the  opinion  of  the  court :  — 
The  indictment  charges  that  the  defendant  suffered  certain  named 
persons  "  to^ilay  in  a  house,  or  on, premises  in  the  county  aforesaid, 
then  in  the  occupation  and  under  the  control  of  the  said  Perrigo,  a 
•     game  of  cards,  at  which  game  of  cards,  played  as  aforesaid,  money  or 
I  property  was  won  and  lost." 
^    This  indictment  was  held  insuflflcient  upon  demurrer. 

The  rule  is  well  settled  that  an  indictment  must  set  forth  the  offence 
with  such  certainty  as  to  apprise  the  defendant  of  the  nature  of  the 
accusation  upon  which  he  is  to  be  tried,  and  to  constitute  a  bar  to  any 
^subsequent  proceeding  for  the  same  offence. 

Tested  by  this  rule,  the  indictment  under  consideration  is  obviously 
defective.  Whether  the  defendant  was  to  be  tried  for  suffering  gaming 
in  his  house,  or  for  suffering    gaming  on  premises  elsewhere  in  the 


SECT.    I.]  UNITED    STATES    V.    CRUIKSHANK.  903 

county ;  or  whether  it  was  for  suffering  a  game  upon  which  money  was 
won  or  lost,  or  upon  which  property  was  won  or  lost,  the  defendant 
could  not  learn  from  anything  contained  in  the  indictment,  and  could 
not,  therefore,  be  presumed  to  have  been  able  to  make  any  available  or 
effectual  preparation  for  defence  against  so  vague  and  uncertain  an 
accusation.  Nor  would  a  conviction  for  sulfering  a  game  for  money  to 
be  played  in  his  house  have  constituted  a  bar  to  a  subsequent  indict- 
ment for  suffering  a  game  for  property  to  be  played  elsewhere  on  his 
prGmise,'<. 

Would  it  be  pretended  that,  under  the  2d  section  of  the  statute  pun- 
ishing crimes  against  the  person,  it  would  be  sufficient  to  charge  that 
the  defendant  maliciously  shot  at  and  wounded  another,  with  a  gun  or 
other  instrument,  or  that  the  defendant  cut  or  stabbed  such  person 
with  a  knife  or  other  deadly  weapon  ?  And  yet  it  might,  with  the  same 
propriety,  be  said,  in  support  of  such  an  indictment,  that  it  charged  but 
one  offence  ;  that  the  shooting  and  stabbing  were  but  the  allegation  of 
the  different  modes  and  means  by  which  the  offence  was  committed,  and 
that  under  the  125th  section  of  the  Criminal  Code  such  different  modes 
and  means  might  be  alleged  in  the  alternative.  It  is  clear,  however, 
that  the  section  referred  to  cannot  admit  of  any  such  construction. 

The  judgment  is  affirmed. 


UNITED  STATES  v.  CRUIKSHANK. 
Supreme  Court  of  the  United  States.     1875. 

[Reported  92  U.  S.  542.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Louisiana. 

This  was  an  indictment  for  conspiracy  under  the  sixth  section  of  the 
act  of  May  30,  1870,  known  as  the  Enforcement  Act  (16  Stat.  140), 
and  consisted  of  thirty-two  counts. 

The  Jirst  count  was  for  banding  together,  with  intent  "  unlawfully 
and  feloniously  to  injure,  oppress,  threaten,  and  intimidate"  two  citi- 
zens of  the  United  States,  "  of  African  descent  and  persons  of  color," 
"with  the  unlawful  and  felonious  intent  thereby"  them  "to  hinder 
and  prevent  in  their  respective  free  exercise  and  enjoyment  of  their 
lawful  right  and  privilege  to  peaceably  assemble  together  with  each 
other  and  with  other  citizens  of  the  said  United  States  for  a  peaceable 
and  lawful  purpose." 

The  Jifth  avers  an  intent  to  hinder  and  prevent  the  same  persons 
"in  the  exercise  and  enjoyment  of  the  rights,  privileges,  immunities, 
and  protection  granted  and  secured  to  them  respectively  as  citizens  of 
the  said  United  States,  and  as  citizens  of  the  said  State  of  Louisiana, 
by  reason  of  and  for  and  on  account  of  the  race  and  color  "  of  the  said 
persons. 

The  eighth  avers  an  intent  "to  prevent  and  hinder"  the  same  per- 


904  UNITED    STATES   V.    CRUIKSHANK.  [CHAP.  XV. 

SOUS  "in  their  several  and  respective  free  exercise  and  enjoyment  of 
every,  each,  all,  and  singular  the  several  rights  and  privileges  granted 
and  secured  "  to  them  "  by  the  constitution  and  laws  of  the  United 
States."  1 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court :  — 
We  come  now  to  consider  the  fifth  and  thirteenth  and  the  eighth  and 
sixteenth  counts,   which  may  be  brought  together  for  that  purpose. 
The  intent  charged  in  the  fifth  and  thirteenth  is  "to  hinder  and  pre- 
vent the  parties  in  their  respective  free  exercise  and  enjoyment  of  the 
rights,  privileges,  immunities,  and  protection  granted  and  secured  to 
,^them  respectively  as  citizens  of  the  United  States,  and  as  citizens  of 
f    said  State  of  Louisiana,"  "for  the  reason  that  they,   .  .  .   being  then 
and  there  citizens  of  said  State  and  of  the  United  States,  were  persons 
of  African  descent  and  race,  and  persons  of  color,  and  not  white  citizens 
thereof ;  "  and  in  the  eighth  and  sixteenth,  to  hinder  and  prevent  them 
I  "in  their  several  and  respective  free  exercise  and  enjoyment  of  every, 
;  each,  all,  and  singular  the  several  rights  and  privileges  granted  and  se- 
cured to  them  by  the  constitution  and  laws  of  the  United  States."     The 
same  general  statement  of  the  rights  to  be  interfered  with  is  found  in 
the  fifth  and  thirteenth  counts. 

According  to  the  view  we  take  of  these  counts,  the  question  is  not 
whether  it  is  enough,  in  general,  to  describe  a  statutory  offence  in  the 
language  of  the  statute,  but  whether  the  offence  has  here  been  described 
at  all.  The  statute  provides  for  the  punishment  of  those  who  conspire 
"to  injure,  oppress,  threaten,  or  intimidate  any  citizen,  with  intent  to 
prevent  or  hinder  his  free  exercise  and  enjoyment  of  any  right  or  privi- 
lege granted  or  secured  to  him  by  the  constitution  or  laws  of  the  United 
States."  These  counts  in  the  indictment  charge,  in  substance,  that  the 
intent  in  this  case  was  to  hinder  and  prevent  these  citizens  in  the  free 
exercise  and  enjoyment  of  "every,  each,  all,  and  singular"  the  rights 
granted  them  by  the  Constitution,  &c.  There  is  no  specification  of 
any  particular  right.     The  language  is  broad  enough  to  cover  all. 

In  criminal  cases,  prosecuted  under  the  laws  of  the  United  States, 
the  accused  has  the  constitutional  right  "to  be  informed  of  the  nature 
and  cause  of  the  accusation."  Amend.  VI.  In  United  States  v.  Mills, 
7  Pet.  142,  this  was  construed  to  mean,  that  the  indictment  must  set 
forth  the  offence  "  with  clearness  and  all  necessary  certainty,  to  apprise 
the  accused  of  the  crime  with  which  he  stands  charged ;  "  and  in  United 
States  v.  Cook,  17  Wall.  174,  that  "  every  ingredient  of  which  the  offence 
is  composed  must  be  accurately  and  clearly  alleged."  It  is  an  ele- 
mentary principle  of  criminal  pleading  that  where  the  definition  of  an 
offence,  whether  it  be  at  common  law  or  by  statute,  "  includes  generic 
terms,  it  is  not  sufficient  that  the  indictment  shall  charge  the  offence  in 
the  same  generic  terms  as  in  the  definition ;  but  it  must  state  the 
species, — it  must  descend  to  particulars."  1  Arch.  Cr.  Pr.  and  PL, 
291.  The  object  of  the  indictment  is,  first,  to  furnish  the  accused  with 
1  Only  so  much  of  the  case  as  relates  to  the  fifth  and  eighth  counts  is  printed  here. 


SECT.   I.]  UNITED    STATES   V.   CRUIKSHANK.  905 

such  a  description  of  the  charge  against  him  as  will  enable  him  to  make 
his  defence,  and  avail  himself  of  his  conviction  or  acquittal  for  protec- 
tion against  a  further  prosecution  for  the  same  cause;  and,  second,  to 
inform  the  court  of  the  facts  alleged,  so  that  it  may  decide  whether  they 
are  sullicient  in  law  to  support  a  conviction,  if  one  should  be  had.  For 
this,  facts  are  to  be  stated,  not  conclusions  of  law  alone.  A  crime  is 
made  up  of  acts  and  intent;  and  these  must  be  set  forth  in  the  indict- 
ment, with  reasonable  particularity  of  time,  place,  and  circumstances. 

It  is  a  crime  to  steal  goods  and  chattels;  but  an  indictment  would 
be  bad  that  did  not  specify  with  some  degree  of  certainty  the  articles 
stolen.  This,  because  the  accused  must  be  advised  of  the  essential  par- 
ticulars of  the  charge  against  him,  and  the  court  must  be  able  to  decide 
whether  the  property  taken  was  such  as  was  the  subject  of  larceny. 
So,  too,  it  is  in  some  States  a  crime  for  two  or  more  persons  to  con- 
spire to  cheat  and  defraud  another  out  of  his  property ;  but  it  has 
been  held  that  an  indictment  for  such  an  offence  must  contain  alle- 
gations setting  forth  the  means  proposed  to  be  used  to  accomplish  the 
purpose. 

This,  because,  to  make  such  a  purpose  criminal,  the  conspiracy  must 
be  to  cheat  and  defraud  in  a  mode  made  criminal  by  statute  ;  and  as  all 
cheating  and  defrauding  has  not  been  made  criminal,  it  is  necessary  for 
the  indictment  to  state  the  means  proposed,  in  order  that  the  court  may 
see  that  they  are  in  fact  illegal.  State  v.  Parker,  43  N.  H.  83 ;  State 
V.  Reach,  40  Vt.  118;  Alderman  v.  The  People,  4  Mich.  414;  State 
V.  Roberts,  34  Me.  32.  In  Maine,  it  is  an  offence  for  two  or  more  to 
conspire  with  the  intent  unlawfully  and  wickedly  to  commit  any  crime 
punishable  by  imprisonment  in  the  State  prison  (State  v.  Roberts) ; 
but  we  think  it  will  hardly  be  claimed  that  an  indictment  would  be  good 
under  this  statute  which  charges  the  object  of  the  conspiracy  to  have 
been  "unlawfully  and  wickedly  to  commit  each,  every,  all,  and  singu- 
lar the  crimes  punishable  by  imprisonment  in  the  State  prison."  All 
crimes  are  not  so  punishable.  Whether  a  particular  ci'ime  be  such  a 
one  or  not,  is  a  question  of  law.  The  accused  has,  therefore,  the  right 
to  have  a  specification  of  the  charge  against  him  in  this  respect,  in 
order  that  he  may  decide  whether  he  should  present  his  defence  by  mo- 
tion to  quash,  demurrer^,  or  plea;  and  the  court,  that  it  may  determine 
whether  the  facts  will  sustain  the  indictment.  So  here,  the  crime  is 
made  to  consist  in  the  unlawful  combination  with  an  intent  to  prevent 
the  enjoyment  of  any  right  granted  or  secured  by  the  Constitution,  &c. 
All  rights  are  not  so  granted  or  secured.  Whether  one  is  so  or  not  is 
a  question  of  law,  to  be  decided  by  the  court,  not  the  prosecutor.  There- 
fore, the  indictment  should  state  the  particulars,  to  inform  the  court  as 
well  as  the  accused.  It  must  be  made  to  appear  —  that  is  to  say,  ap- 
pear from  the  indictment,  without  going  further  —  that  the  acts  charged 
will,  if  proved,  support  a  conviction  for  the  offence  alleged. 

But  it  is  needless  to  pursue  the  argument  further.  The  conclusion  is 
irresistible  that  these  counts  are  too  vague  and  general.    They  lack  the 


906     .  COMMONWEALTH    V.    HARRINGTON.  [CHAP.  XV. 

certainty  and  precision  required  by  the  established  rules  of  criminal 
pleading.  It  follows  that  they  are  not  good  and  sufficient  in  law. 
The}'  are  so  defective  that  no  judgment  of  conviction  should  be  pro- 
nounced upon  them. 

The  order  of  the   Circuit   Court  arresting  the  judgment   njj07i   the 

verdict  is,    therefore,    affirmed ;    and  the   cmise   remanded,    loith 

instructions  to  discharge  the  defendants. 


COMMONWEALTH  v.   HARRINGTON. 
Supreme  Jddicial  Court  of  Massachusetts.     1880. 

[Reported  130  Mass.  35.] 

SouLE,  J.  The  only  question  in  this  case  is  whether  a  male  person 
who  is  convicted  on  a  complaint  for  drunkenness,  which  does  not  allege 
two  previous  convictions  of  a  like  offence  within  a  year,  can  be  sen- 
tenced to  any  greater  penalty  than  the  payment  of  a  fine  of  one  dollar, 
which  is  the  penalty  imposed  by  the  St.  of  1880,  c.  221,  §  1. 

It  is  contended,  in  behalf  of  the  Commonwealth,  that  the  greater 
penalty  can  be  imposed  by  virtue  of  §  2  of  the  same  statute,  which  pro- 
vides that,  when  such  person  "  is  convicted  of  the  offence  of  drunken- 
ness, and  it  is  proved  that  he  has  been  convicted  of  a  like  offence  twice 
before  within  the  next  preceding  twelve  months,  he  may  be  punished 
by  a  fine  not  exceeding  ten  dollars,  or  by  imprisonment  in  any  place 
now  provided  by  law  for  common  drunkards,  for  a  term  not  exceeding 
one  year;"  and  provides  further  that  "it  shall  not  be  necessary  in 
complaints  under  the  act  to  allege  such  previous  convictions." 

The  language  of  this  section  is  broad  enough  to  cover  the  case  at 
bar,  and  the  rulings  of  the  judge  who  presided  in  the  Superior  Court 
when  the  motion  for  sentence  was  made  and  the  evidence  of  the  pre- 
vious convictions  of  the  defendant  was  produced,  were  in  strict  con- 
formity to  it. 

We  are  of  opinion,  however,  that  the  ruling  was  erroneous,  and  that 
the  evidence  ought  not  to  have  been  received.  It  is  provided  by  article 
12  of  the  Declaration  of  Rights  that  no  subject  shall  be  held  to  answer 
for  any  crime  or  offence  until  the  same  is  fully  and  plainly,  substan- 
tially and  formally,  described  to  him.  When  a  statute  imposes  a  higher 
penalty  on  a  third  conviction,  it  makes  the  former  convictions  a  part  of 
the  description  and  character  of  the  offence  intended  to  be  punished. 
Tuttle  V.  Commonwealth,  2  Gray,  505 ;  Commonwealth  v.  HoUey, 
3  Gray,  458;  Garvey  v.  Commonwealth,  8  Gray,  382.  It  follows  that 
the  offence  which  is  punishable  with  the  higher  penalty  is  not  fully  and 
substantialljf  described  to  the  defendant,  if  the  complaint  fails  to  set 
forth  the  former  convictions  which  are  essential  features  of  it.  That 
clause  of  the  statute,  therefore,  which  provides  that  it  shall  not  be 
necessary,  in  complaints  under  it,  to  allege  such  previous  convictions. 


SECT,    I,]  STATE   V.   MACE.  907 

is  inoperative  and  void,  as  being  contrary  to  the  provisions  of  the  Dec- 
laration of  Rights. 

The  result  is,  that  the  defendant  is  to  be  sentenced  for  a  single 
offence  of  drunkenness. 


STATE  V.  MACE. 
Supreme  Judicial  Court  of  Maine.     1884. 

[Reported  76  Maine,  64.] 

On  exceptions. 

Indictment  for  perjury.  The  verdict  was  guilty.  A  motion  in  arrest 
of  judgment  stated  as  one  reason  :  "  Because  said  indictment  does  not 
sufficiently  charge  an  oflfence  against  the  respondent  under  the  constitu- 
tion and  laws  of  the  State  of  Maine."  The  motion  was  overruled  and 
exceptions  were  taken  to  that  ruling. 

The  indictment  was  in  the  form  prescribed  by  R.  S.  1871,  c.  122,  §  5. 

Walton,  J.  The  defendant  is  charged  with  having  committed  the 
crime  of  perjury  "by  falsely  swearing  to  material  matter  in  a  writing 
signed  by  him."  The  indictment  makes  no  mention  of  the  character  or 
purpose  of  the  writing.  Nor  does  it  state  what  the  matter  falsely  sworn 
to  was.  Nor  does  it  contain  any  averments  which  will  enable  the  court  I 
to  determine  that  the  oath  was  one  authorized  by  law.  The  question  is 
whether  such  an  indictment  can  be  sustained.  We  think  it  cannot.  It 
does  not  contain  sufficient  matter  to  enable  the  court  to  render  an  in- 
telligent judgment.  The  recital  of  facts  is  not  sufficient  to  show  that 
a  crime  has  been  committed.  All  that  is  stated  may  be  true,  and  yet 
uo  crime  have  been  committed.  The  character  of  the  writing  is  not 
stated,  nor  its  purpose  ;  nor  the  use  made,  or  intended  to  be  made,  of 
it.  For  aught  that  appears,  it  may  have  been  a  voluntary  affidavit  to 
the  wonderful  cures  of  a  quack  medicine.  Such  an  affidavit,  as  every 
lawj'er  knows,  could  not  be  made  the  basis  of  a  conviction  for  perjury. 
In  the  language  of  our  statute  defining  perjury,  it  is  only  when  one  who 
is  required  to  tell  the  truth  on  oath  or  affirmation  lawfully  administered, 
wilfully  and  corruptly  swears  or  affirms  falsely  to  material  matter,  in  a 
proceeding  before  a  court,  tribunal,  or  officer  created  by  law,  that  he  is 
guilty  of  perjury.  R.  S.  c.  122,  §  1.  The  oath  must  be  one  authorized 
or  required  by  law,  to  constitute  perjury.  Swearing  to  an  extra-judicial 
affidavit  is  not  perjury.  And  the  indictment  must  contain  enough  to 
show  that  the  oath  was  one  which  the  law  authorized  or  required,  or  it 
will  be  defective  and  clearly  insufficient,  even  after  verdict ;  for  the 
verdict  will  affirm  no  more  than  is  stated  in  the  indictment;  and  if  the 
indictment  does  not  contain  enough  to  show  that  perjury  has  been  com- 
mitted, a  verdict  of  guilty  will  not  aid  it.  We  think  the  indictment  in 
this  case  is  fatally  defective  in  not  setting  out  either  the  tenor  or  the 
substance  of  the  writing  sworn  to  by  the  accused,  to  the  end  that  the 
court  might  see  whether  it  was  one  in  relation  to  which  perjury  could 
be  committed. 


90S  STATE    V.    MACE.  [CHAP.  XV. 

Besides,  the  writing  referred  to  in  the  indictment  may  (and  it  would 
be  strange  if  it  did  not)  contain  more  than  one  statement  in  relation  to 
matters  of  fact.  The  grand  jury,  upon  the  evidence  before  them,  may 
have  come  to  the  conclusion  that  the  statement  in  relation  to  one  of 
these  matters  of  fact  was  false,  and  thereupon  voted  to  indict  the  de- 
fendant, while  the  traverse  jury,  upon  the  evidence  before  them,  may 
have  come  to  the  conclusion  that  the  statement  in  relation  to  that 
matter  was  true,  but  that  some  other  statement  contained  in  the  writing 
was  false,  and  thereupon  convicted  the  defendant  of  perjury  in  swearing 
to  the  latter  statement ;  and  thus  the  defendant  would  be  convicted 
upon  a  matter  in  relation  to  which  he  had  never  been  indicted  by  the 
grand  jury.  Surely,  an  indictment  which  will  permit  of  such  a  result 
cannot  be  sustained. 

True,  the  form  followed  in  this  case  is  one  established  by  legislative 
authority.  But  the  authority  of  the  legislature  in  such  cases  is  limited. 
Undoubtedly  the  legislature  may  abbreviate,  simplify,  and  in  many 
other  respects  modify  and  change  the  forms  of  indictments  ;  but  it  can- 
not make  valid  and  sufficient  an  indictment  in  which  the  accusation  is 
not  set  forth  with  sufficient  fulness  to  enable  the  accused  to  know  with 
reasonable  certainty  what  the  matter  of  fact  is  which  he  has  got  to 
meet,  and  enable  the  court  to  see,  without  going  out  of  the  record, 
that  a  crime  has  been  committed.  This  the  constitution  of  the  State 
forbids  ;  and  to  that  instrument,  the  legislature  as  well  as  all  other 
tribunals  must  conform.  The  authority  of  the  legislature  in  this  partic- 
ular, and  the  extent  to  which  it  may  go  in  establishing  forms,  has  been 
judicially  determined  in  this  State,  and  the  arguments,  pro  and  con, 
need  not  be  repeated  here.  We  refer  to  State  v.  Learned,  47  Maine, 
426. 

The  common  law  required  indictments  for  perjury  to  be  drawn  with 
great  nicety  and  fulness,  more  so,  it  is  believed,  than  the  purposes  of 
justice  required ;  and  the  result  was  that  but  few  such  indictments 
proved  to  be  sufficient  when  subjected  to  a  close  and  searching  exami- 
nation. To  avoid  this  inconvenience,  the  legislature,  in  1865,  enacted 
two  forms,  which  it  declared  should  be  sufficient.  The  first  related  to 
perjury  committed  by  persons  testifying  orally  before  some  court  or  other 
tribunal,  and,  although  much  briefer  than  would  have  answered  by  the 
strict  rules  of  the  common  law,  it  was  held  sufficient  in  State  v.  Corson, 
59  Maine,  137.  The  second  related  to  perjury  committed  in  swearing 
to  some  writing  in  relation  to  which  an  oath  is  authorized  or  required 
by  law ;  and  the  sufficiency  of  this  latter  form  is  now  for  the  first  time 
before  the  law  court  for  consideration ;  and,  for  the  reasons  already 
stated,  and  to  be  found  more  fully  stated  in  the  case  cited  (State  v. 
Learned,  47  Maine,  426),  we  are  forced  to  the  conclusion  that  it  is  not 
sufficient ;  that  the  legislature,  in  its  laudable  desire  to  prune  away  the 
great  prolixity  of  the  forms  required  by  the  common  law,  cut  too  deep, 
and  did  not  leave  enough  to  meet  the  requirements  of  the  constitution 
of  the  State.  Exceptions  sustained.     Judgment  arrested. 


SECT.    I.]  STATE   V.    CAMPBELL.  909 


STATE  V.  Mccarty.  . — ^ 

Supreme  Court  of  Rhode  Island.     1891. 

[Reported  17  R.  1.  370.] 

Per  Curiam.  The  defendant  was  indicted  in  tlie  Court  of  Common 
Pleas  at  its  December  term,  1890,  for  breaking  and  entering,  in  the 
day-time,  the  house  of  one  Jeremiah  B.  Fuller,  in  Providence,  with  the 
intent  to  commit  larceny  therein.  At  the  trial  the  prosecution  called  as 
a  witness  the  owner  of  the  dwelling-house,  who  testified  that  his  name 
was  Jedediah  B.  Fuller.  When  the  case  for  the  prosecution  was  closed, 
the  defendant  moved  that  the  indictment  be  quashed  because  of  the 
variance  between  the  allegation  of  the  owner  of  the  house  and  the  proof 
submitted.  The  Court  overruled  the  motion  to  quash,  and  upon  motion 
of  the  attorney-general  and  against  the  defendant's  objection,  permit- 
ted the  indictment  to  be  amended  by  striking  out  the  name  Jeremiah 
and  inserting  the  name  Jedediah.  The  defendant  excepted  to  the 
rulings  of  the  Court  of  Common  Pleas  in  the  matters  stated,  and  the 
jury  having  returned  a  verdict  of  guilty,  now  petitions  for  a  new  trial, 
upon  the  ground,  among  others,  that  the  Court  of  Common  Pleas  had 
no  authority  to  permit  the  amendment.  "We  think  that  a  new  trial 
should  be  granted.  The  amendment  to  the  indictment  being  in  a  matter 
of  substance,  could  only  properly  have  been  made  in  the  presence  of 
and  with  the  concurrence  of  the  grand  jury  (1  Bish.  Crim.  Proc.  §§  707- 
711 ',  Ex  parte  Bain,  121  U.  S.  1,  7  Sup.  Ct.  Rep.  781) ;  or,  under  Pub. 
St.  R.  I.  c.  248,  §  4,  with  the  consent  of  the  accused. 

Petition  granted. 


STATE   u.    CAMPBELL. 
Supreme  Court  of  Missouri.     1907^  'ii^-''^' 

IReported  210  Mo.  202.] 

Fox,  P.  J.^  The  final  complaint  in  which  the  sufficiency  of  this 
indictment  is  challenged,  that  is,  that  it  fails  to  comply  with  the  con- 
stitutional requirement  in  its  conclusion,  is  by  far  the  most  serious 
proposition  disclosed  by  the  record  before  us  in  this  cause.  Article  6, 
section  38,  of  the  Constitution  of  this  State  provides  that  "all  writs  ) 
and. process  shall  run  and  all  prosecutions  shall  be  conducted  in  the 
name  of  the  '  State  of  Missouri ; '  all  writs  shall  be  attested  by  the  ' 
jclerk  of  the  court  from  which  they  shall  be  issued  :  .and  all  indictments 
shall  conclude,  '  against  the  peace  and  dignity  of , the  State.'  " 

It  will  be  observed  that  the  conclusion  to  the  iiidictment  now  under 

1  Only  so  much  of  the  case  as  discusses  the  question  of  form  of  indictment  is 
given.  —  Ed. 


910  STATE    V.  CAMPBELL.  fCHAP.  XV. 

consideration  is  "  against  the  peace  and  dignity  of  State."  The  com- 
plaint of  learned  counsel  for  appellant  is  dii'ected  against  this  conclu- 
sion on  the  ground  that  the  word  "  the  "  is  omitted  immediately  preceding 
the  word  "State." 

At  the  very  threshold  of  the  consideration  of  the  proposition  now 
under  discussion  there  is  no  dispute  that  there  must  be  substantial 
compliance  with  the  provisions  of  the  Constitution  respecting  the  con- 
clusion that  all  indictments  shall  conclude  "against  the  peace  and 
dignity  of  the  State."  It  has  been  expressly  ruled  by  this  court  that 
no  formal  charge  of  crime  is  sufficient  without  the  averment  of  the 
conclusion  to  an  indictment  as  contemplated  by  the  Constitution. 
[State  V.  Stacy,  103  Mo.  11  ;  State  v.  Lopez,  19  Mo.  254;  State  v. 
Pemberton,  30  Mo.  376.]  This  constitutional  requirement  that  all 
indictments  shall  conclude  "against  the  peace  and  dignity  of  the 
State,"  in  effect  is  a  requirement  that  all  indictments  shall  point  out 
in  their  conclusion  that  the  offence  as  described  in  the  main  body  of 
the  indictment  is  "  against  the  peace  and  dignity  of  the  State"  which 
entertains  and  exercises  jurisdiction  of  the  offence  charged. 

A  number  of  states  have  a  similar  constitutional  requirement  to  ours 
as  to  the  conclusion  of  indictments  or  informations,  and  it  is  significant 
that  the  appellate  courts  of  the  various  states  having  a  like  constitu- 
tional provision  have  uniformly  held,  where  such  constitutional  pro- 
vision has  been  in  judgment  before  them,  that  it  was  essential  to  the 
validity  of  an  indictment  or  information  that  the  constitutional  require- 
ment be  substantially  complied  with.  An  examination  of  the  authori- 
ties indicates  some  difference  in  the  degree  of  exactness  required  in 
following  the  constitutional  language  in  the  various  states,  but  they 
are  all  practically  uniform  that  there  must  be  a  substantial  compliance 
with  such  constitutional  requirement. 

In  State  v.  Hays,  78  Mo.  600,  the  conclusion  of  the  indictment  em- 
braced all  the  words  required  by  the  Constitution,  but  also  embraced 
the  additional  words  "  of  Missouri."  The  conclusion  in  that  case  was, 
"  against  the  peace  and  dignity  of  the  State  of  Missouri."  The  objec- 
tion urged  to'that  conclusion  was,  not  that  the  conclusion  did  not  em- 
brace the  words  prescribed  by  the  Constitution,  but  that  the  addition 
of  the  words  "of  Missouri"  invalidated  the  indictment.  This  objec- 
tion was  held  by  this  court  without  merit,  and  this  court  said  that  "  the 
added  words  are  but  what  the  constitutional  language  implies,  and 
the  addition  in  no  wise  enlarged,  varied  or  changed  the  phrase  or  the 
sense."  In  other  words,  it  was  in  effect  that  the  phrase  embraced  in 
the  conclusion  required  by  the  Constitution,  "The  State,"  in  fact 
meant  the  State  of  Missouri. 

To  the  same  effect  is  State  z>.  Schloss,  93  Mo.  361.  The  conclusion 
to  the  indictment  in  that  case  embraced  the  words  required  by  the 
Constitution,  but  also  added  "contrary  to  the  form  of  the  statute." 
It  was  held  and  properly  so  that  this  contention  was  untenable  for  the 
reason  that  the  mere  additional  woi'ds  would  not  invalidate  the  indict- 


SECT.    I.]  STATE   V.    CAMPBELL.  911 

ment  when  the  conclusion  embraced  the  language  designated  by  the 
Constitution. 

In  one  of  the  leading  cases,  State  v.  Kean,  10  N.  H.  347,  the  lan- 
guage used  in  the  conclusiou  was  "  against  the  peace  and  dignity  of 
our  said  State,"  instead  of  "the  State"  as  required  by  the  Constitu- 
tion. It  was  held  by  the  court  in  tliat  case  that  the  use  of  the  language 
was  not  such  a  departure  from  the  language  required  by  the  Constitu- 
tion as  to  vitiate  the  indictment.  It  will  be  observed  in  that  case,  as 
well  as  in  the  Hays  and  Schloss  Missouri  cases,  that  while  the  language 
used  in  the  conclusion  was  not  identical  with  that  prescribed  by  the 
Constitution,  yet  the  language  used  did  fully  conform  to  the  require- 
ments of  the  Constitution  by  clearly  indicating  the  State  which  was 
offended  by  the  violation  of  the  law  which  was  charged  in  the  body  of 
the  indictments. 

So,  in  the  case  of  Zarresseller  v.  People,  17  111.  101.  In  that  case 
the  indictment  concluded  "  against  the  peace  and  dignity  of  the  People 
of  the  State  of  Illinois."  The  twenty-fifth  section  of  the  fifth  article 
of  the  Constitution  of  that  State  provides  that  all  prosecutions  shall  be 
carried  on  "in  the  name  and  by  the  authority  of  the  people  of  the 
State  of  Illinois,"  and  conclude  "against  the  peace  and  dignity  of  the 
same."  It  was  very  properly  ruled  in  that  case  that  the  conclusion  was 
the  same  in  substance  as  required  by  the  Constitution  and  within  the 
spirit  and  meaning  of  the  requisition. 

In  Anderson  v.  State,  5  Ark.  444,  the  indictment  concluded  "  against 
the  peace  and  dignity  of  the  people  of  the  State  of  Arkansas."  The 
Constitution  of  that  State  required  that  the  conclusion  should  be 
"against  the  peace  and  dignity  of  the  State  of  Arkansas."  It  was 
correctly  held  that  this  slight  deviation  from  the  form  prescribed  in  the 
Constitution  would  not  invalidate  the  indictment. 

To  the  same  effect  is  State  v.  Robinson,  27  S.  C.  615,  where  the  lan- 
guage in  the  conclusion  of  the  indictment  was  "  the  same  State  afore- 
said," instead  of  "the  State."  It  will  be  observed  in  that  case  that 
all  the  constitutional  words  were  present  but  the  words  ' '  same  "  and 
"aforesaid"  were  added.  Clearly  that  case  was  properly  decided 
when  it  held  that  the  addition  of  those  words  did  not  change  the  sense 
or  meaning  of  the  clause. 

To  the  same  effect  is  State  v.  Pratt,  44  Tex.  93,  in  which  the  word 
"  Texas  "  was  added,  and  it  was  held  that  that  additional  word  to  the 
concluding  language  required  by  the  Constitution  should  not  invalidate 
the  indictment. 

In  State  v.  Waters,  1  Mo.  App.  7,  as  heretofore  suggested,  that 
court,  speaking  through  Judge  Lewis,  clearly  pointed  out  the  purpose 
and  meaning  of  the  terms  designated  by  the  Constitution,  "  against  the 
peace  and  dignity  of  the  State,"  that  is,  that  it  was  to  indicate 
the  power  or  authority  against  which  the  facts  charged  constituted  an 
offence.  In  other  words,  that  while  the  exact  language  prescribed  by 
the  Constitution  need  not  be  used,  yet  such  terms  must  be  used  as  will 


912  STATE    V.    CAMPBELL.  [CHAP.  XV. 

indicate  the  State  against  which  the  facts  charged  constitute  an  offence. 
It  is  announced  in  that  case  that  "  the  general  doctrine  is  that  if  the  in- 
tent of  the  Constitution  be  substantially  responded  to  in  this  part  of 
the  indictment,  a  literal  transcript  of  the  formula  is  not  essential.  It 
is  further  held  that  if  the  formula  be  present,  other  words,  not  per- 
verting the  meaning,  will  be  treated  as  surplusage."  In  that  case  the 
same  objection  was  urged  against  the  indictment  as  was  insisted  upon 
in  State  v.  Schloss,  supra^  that  there  was  added  to  the  conclusion  pre- 
scribed by  the  Constitution  "  and  contrary  to  the  form  of  the  statute 
in  such  cases  made  and  provided  by  the  State."  It  is  manifest  that 
the  concluding  words  prescribed  by  the  Constitution  were  embraced  in 
the  conclusion  to  the  indictment  in  that  case,  therefore  it  was  very 
properly  held  that  the  conclusion  was  sufficient. 

Mr.  Bishop,  in  his  work.  New  Criminal  Procedure  (4  Ed.),  vol.  1, 
sec.  651,  after  stating  the  ruling  of  some  of  the  courts  upon  the  propo- 
sition now  under  consideration,  reached  this  conclusion.  He  says : 
"Derivable  from  all,  and  from  the  analogies  of  the  law,  would  seem 
to~beTIJat^ihimportant  words  omitted  from  the  constitutional  form  of 
the  conclusion,  or  changed  therein,  will  not  necessarily  vitiate  it;  but 
whatever  alters  the" substance,  even  in  what  seems  unimportant,  will 
render  it  void." 

In  Lemons  v.  State,  4  "W.  Va.  755,  the  conclusion  of  the  indictment 
was  "  against  the  peace  and  dignity  of  the  State  of  W.  Virginia." 
The  Constitution  of  that  State  provided,  at  the  time  the  indictment  in 
the  case  was  returned,  that  all  indictments  should  conclude  "  against 
the  peace  and  dignity  of  the  State  of  West  Virginia."  It  was  held 
in  that  case  that  the  abbreviation  for  the  term  "  West "  with  the  letter 
"  W"  before  Virginia  was  not  a  compliance  with  the  provisions  of  the 
Constitution  and  the  indictment  was  held  insufficient.  This  case  is 
cited  with  approval  by  Mr.  Bishop  in  his  Criminal  Procedure,  and  is 
also  cited  in  State  v.  Waters,  supra,  and  Judge  Lewis  in  that  case  in 
no  way  disapproves  of  the  West  Virginia  case.  He  simply  concluded 
his  review  of  the  Lemons  case  by  stating  that  ' '  this  was  no  case  of 
surplusage;  it  was  the  rejection  of  a  name  given  by  the  Constitution 
and  the  adoption  of  a  different  one."  Subsequent  to  the  announcement 
of  the  conclusion  reached  by  the  Supreme  Court  of  Appeals  of  West 
Virginia  in  the  Lemons  case,  heretofore  cited,  the  Constitution  was 
changed  respecting  the  concluding  terms  of  all  indictments,  and  instead 
of  requiring  the  conclusion  "against  the  peace  and  dignity  of  the 
State  of  West  Virginia,"  the  same  conclusion  was  required  as  in  this 
State,  that  is,  "  against  the  peace  and  dignity  of  the  State,"  and  in  State 
V.  Allen,  8  W.  Va.  680,  the  conclusion  to  the  indictment  conformed  to 
the  requirements  of  the  former  Constitution  and  concluded  in  the  terms 
"  against  the  peace  and  dignity  of  the  State  of  West  Virginia,"  instead 
of  concluding  "  against  the  peace  and  dignity  of  the  State,"  as  required 
by  the  Constitution  then  in  force.  That  case,  in  harmony  with  the 
rule  announced  by  this  court,  correctly  held  that  the  terms  of  the  con- 


SECT.    I.]  STATE   V.    CAMPBELL.  913 

elusion  as  prescribed  by  the  Constitution  being  embraced  in  the  lan- 
guage used,  the  mere  addition  of  the  State  of  West  Virginia  would  not 
vitiate  the  indictment.  The  Lemons  case  was  referred  to  approvingly, 
but  distinguished  from  the  Allen  case. 

It  may  be  said  as  to  the  case  of  Lemons  v.  State,  s^^prn,  that  from 
the  language  used  by  the  learned  judge  rendering  the  opinion,  it  is  sus- 
ceptible of  being  interpreted  as  not  being  in  perfect  harmony  with  many 
other  of  the  appellate  courts,  by  reason  of  its  requiring  a  too  strict  and 
literal  compliance  with  the  terms  used  in  the  Constitution  ;  however, 
by  the  subsequent  case  of  State  v.  Allen,  siqyra,  it  is  clearly  indicated 
that  the  Virginia  court  is  in  harmony  with  the  uniform  rulings  of  nearly 
all  the  appellate  courts. 

The  Constitution  of  Wisconsin  contains  a  similar  provision  to  the 
Constitution  of  this  State  and  provides  that  all  indictments  shall  con- 
clude "against  the  peace  and  dignity  of  the  State."  In  Williams  v. 
State,  27  Wis.  402,  the  indictment  in  judgment  before  the  court  con- 
cluded "  against  the  peace  of  the  State  of  Wisconsin."  In  discussing 
the  terms  of  the  conclusion  of  the  indictment  in  that  case,  Lyon,  J., 
speaking  for  the  Supreme  Court  of  Wisconsin,  thus  treats  the  proposi- 
tion. He  said  :  "Art.  VII.,  sec.  17,  of  the  Constitution  provides,  that 
'all  indictments  shall  conclude  against  the  peace  and  dignity  of  the 
State.'  This  mandate  is  imperative,  and  an  indictment  which  does  not 
so  conclude  is  necessarily  bad.  The  courts  have  no  authority  to  dis- 
pense with  that  which  the  Constitution  requires.  The  Constitutions  of 
Virginia,  Texas  and  Missouri  contain  the  same  provision,  and  it  has 
been  held  by  the  Supreme  Court  of  the  two  latter  States,  and  by  the 
Court  of  Appeals  of  the  former,  that  the  conclusion  required  by  the 
Constitution  is  indispensable  to  the  validity  of  the  indictment,"  citing 
Com.  V.  Carney,  4  Gratt.  546 ;  State  v.  Durst,  7  Tex.  74 ;  State  v. 
Lopez,  19  Mo.  254. 

This  brings  us  to  the  consideration  of  the  two  Texas  cases  in  which 
the  identical  proposition  involved  in  this  case  was  in  judgment  before 
the  Texas  Court  of  Appeals  in  the  cases  of  Wallace  Thompson  v.  State, 
15  Tex.  App.  39,  and  in  R.  Thompson  v.  State,  reported  in  the  same 
volume  by  the  same  court,  page  168.  Section  12  of  article  5  of  the 
Constitution  of  Texas,  at  the  time  of  the  announcement  of  the  decision 
in  those  two  cases,  made  the  same  requirement  as  to  the  conclusion  of 
all  prosecutions,  that  is,  that  they  should  conclude  "  against  the  peace 
and  dignity  of  the  State."  In  those  cases  the  definite  article  "the" 
which  should  immediately  precede  the  word  "  State,"  was  omitted,  and 
it  was  expressly  ruled  by  that  court  that  in  the  omission  of  the  word 
"  the,"  as  above  indicated,  there  was  a  failure  to  comply  with  the  re- 
quirement of  the  Constitution  ;  that  the  conclusion  in  all  prosecutions 
should  be  "  against  the  peace  and  dignity  of  the  State."  It  is  not  inap- 
propriate to  say  that  the  Texas  Court  of  Appeals  above  cited  has  long 
been  recognized  by  both  the  bench  and  bar  as  one  of  high  standing,  and 
while  the  propositions  involved  in  those  two  cases  are  not  discussed  at 


914  STATE    V.    CAMPBELL.  [CHAP.  XV, 

any  length,  yet  from  the  recognized  ability  of  the  eminent  lawyers  con- 
stituting that  court,  the  conclusion  reached  doubtless  was  not  without 
due  and  proper  consideration.  This  is  indicated  in  the  latter  case  of 
R.  Thompson  v.  State,  above  referred  to.  In  that  case  the  court  had 
reached  the  conclusion  that  the  judgment  of  the  trial  court  was  right 
and  had  entered  its  order  affirming  the  judgment,  but  the  same  fatal 
defect  in  the  conclusion  of  the  information  by  the  omission  of  the  defi- 
nite article  "  the  "  immediately  preceding  "  State  "  having  been  over- 
looked, a  motion  for  rehearing  was  granted  and  the  judgment  of  the 
trial  court  reversed.  It  is  obvious  that  the  same  proposition  being 
presented  in  both  cases  and  one  in  which  the  judgment  of  the  trial  court 
had  been  affirmed,  that  the  court  fully  recognized  the  importance  of  the 
pvoposition,  and  while  the  expression  of  their  conclusions  was  brief, 
the  consideration  of  the  question  was  full  and  thorough. 

Emphasizing  the  correctness  of  the  conclusion  reached  in  the  two 
cases  last  cited  by  the  Texas  Court  of  Appeals,  the  learned  author, 
Mr.  Bishop,  in  support  of  the  rule  heretofore  announced,  that  the  omis- 
sion of  unimportant  words  from  the  constitutional  form  of  the  conclu- 
sion would  not  necessarily  vitiate  an  indictment  or  information,  but 
whatever  alters  the  substance,  even  in  what  seems  unimportant,  will 
render  it  void,  directs  the  bench  and  bar  to  consult  the  cases  of  Thomp- 
son V.  State,  15  Tex.  App.  on  pages  39  and  168. 

In  10  Am.  and  Eng.  Ency.  Law  (1  Ed.),  514,  we  also  find  in  the 
text  that  where  the  Constitution  of  the  State  requires  that  all  prosecu- 
tions shall  conclude  "against  the  peace  and  dignity  of  the  State,"  the 
omission  of  the  word  "the  "  before  "  State,"  in  an  information,  is  fatal 
to  it,  citing  in  support  of  the  text  the  cases  heretofore  indicated  in  the 
15th  Tex.  App.  at  pages  39  and  168. 

We  have  thus  pointed  out  the  views  of  the  numerous  appellate  courts 
applicable  to  this  question,  and  we  are  now  simply  confronted  with  the 
proposition  as  to  whether  or  not,  measured  by  the  authorities  as  hereto- 
fore indicated,  the  conclusion  to  the  indictment  in  the  case  at  bar  suffi- 
ciently conforms  to  the  requirements  of  the  Constitution  of  this  State. 
In  responding  to  this  proposition  we  deem  it  sufficient  to  say  that,  after 
a  careful  and  thorough  consideration  of  all  the  authorities  applicable  to 
the  subject  now  under  discussion,  we  see  no  escape  from  holding  that 
the  conclusion  to  the  indictment  in  this  cause  fails  to  comply  with  the 
imperative  mandate  of  the  Constitution  of  this  State.  As  heretofore 
pointed  out,  the  authorities  are  all  in  harmony  that  the  conclusion  to 
the  indictment  must  substantially  conform  to  the  requirements  of  the 
Constitution,  and  in  all  cases  where  this  proposition  has  been  in  judg- 
ment before  the  appellate  courts,  where  the  language  used  was  not 
identical  with  the  terms  prescribed  by  the  Constitution,  it  is  significant 
that  the  courts  have  uniformly  pointed  out  that  the  terms  used  were 
equivalent  and  in  effect  and  substance  embraced  the  conclusion  required 
by  the  Constitution,  and,  as  said  by  the  court  of  appeals  in  State  v. 
Waters,  stqjra,  the  conclusion  prescribed  by  the  Constitution  is  for  the 


SECT.    I.J  STATE    V.    CAAiriiKLL.  915 

purpose  of  iudicating  the  power  or  authority  agaiust  which  the  facts 
charged  constitute  an  oflfence.  This  being  true,  it  is  plainly  manifest 
that,  the  definite  article  "the"  which  should  immediately  precede  the 
word  "  State  "  being  omitted,  the  conclusion  to  the  indictment  in  the 
case  at  bar  falls  far  short  of  indicating  the  power  or  authority  against 
which  the  facts  charged  in  the  body  of  the  indictment  constitute  an 
ofifence. 

While  it  may  be  conceded  that  the  word  "  the  "  is  a  small  one  and  in 
many  instances  of  little  importance,  however,  if  we  are  to  longer  rec- 
ognize rules  in  the  proper  interpretation  of  language,  then  we  see  no 
escape  from  the  conclusion  that  the  definite  article  "  the "  preceding 
the  word  "  State  "  is  absolutely  essential  in  order  to  designate  the  par- 
ticular State  against  which  the  offence  is  charged  to  have  been  com- 
mitted. It  is  clear  that  the  omission  of  this  word  not  only  changes  the 
sense  but  the  very  substance  of  the  clause,  and,  as  was  said  by  Mr. 
Bishop  in  the  discussion  of  the  proposition  of  the  conclusion  prescribed 
by  the  Constitution,  "  Whatever  alters  the  substance,  even  in  what 
sjjems  miimportaut,  will  render  it  void."  While  it  may  be  said  that 
the  definite  article  "  the  "  in  many  instances  is  an  unimportant  phrase, 
yet  as  applicable  to  the  conclusion  prescribed  by  the  Constitution  of 
this  State,  it  is  full  of  force  and  vitality.  As  was  said  by  the  learned 
counsel  in  their  brief  in  State  v.  Skillman,  209  Mo.  408,  decided  at  the 
present  term  of  this  court,  "the  article  'the'  directs  what  particular 
thing  or  things  we  are  to  take  or  assume  as  spoken  of.  It  determines 
what  particular  thing  is  meant ;  that  is,  what  particular  thing  we  are  to 
assume  to  be  meant.  It  is  used  before  nouns  with  a  specifying  or  par- 
ticularizing effect."  In  the  use  of  the  definite  article  "the"  immedi- 
ately preceding  "  State  "  in  the  conclusion  prescribed  by  the  Constitution 
we  have  pointed  out  the  State  whose  peace  and  dignity  has  been 
offended,  and  by  the  omission  of  such  definite  article  we  have  a  con- 
clusion that  does  not  designate  the  power  or  authority  against  which 
the  offence  is  committed.  "The  State,"  in  the  conclusion  prescribed 
by  the  Constitution  of  this  State,  means  the  State  of  Missouri,  and 
this  in  substance  was  what  was  decided  in  the  Hays  case,  78  Mo.  600, 
heretofore  cited. 

If  this  conclusion  embraced  language  similar  to  that  pointed  out  in 
the  eases  to  which  we  have  heretofore  referred,  such  as  "  against  the 
peace  and  dignity  of  our  said  State,"  or  "against  the  peace  and  dignity 
of  State  of  Missouri,"  it  might  be  very  properly  ruled  that  such  lan- 
guage was  at  least  equivalent  to  the  language  prescribed  by  the  Consti- 
tution, for  the  reason  that  it  indicated  the  power  and  authority  against 
which  the  offence  as  charged  in  the  body  of  the  indictment  constitutes 
an  offence. 

This  case  falls  far  short  of  conforming  to  or  meeting  the  requirements 
of  the  rule  announced  by  Judge  Lewis  in  State  v.  Waters,  supra.  It 
was  there  said  :  "If  the  intent  of  the  Constitution  be  responded  to  in 
this  part  of  the  indictment,  a  literal  transcript  of  the  formula  is  not 


916  STATE  V.    CAMPBELL.  [CHAP.  XY. 

essential."  But  in  that  same  case  it  will  be  observed  that  the  learned 
judge  said  that  the  purpose  and  meaning  of  the  conclusion  was  to  indi- 
cate the  power  or  authority  against  which  the  facts  charged  constitute 
an  offence.  Therefore  it  is  obvious  that  the  intent  of  the  Constitution 
has  not  been  substantially  responded  to  for  the  reasons  heretofore  sug- 
gested;  that  in  the  omission  of  the  definite  article  "the"  preceding 
"  State  "  there  is  an  absolute  failure  to  indicate  the  power  or  authority 
against  which  the  offence  is  charged  to  have  been  committed. 

It  is  not  a  satisfactory  solution  of  this  proposition  to  say  we  know 
what  was  intended  or  meant  by  the  conclusion  in  the  case  at  bar,  or 
that  it  was  a  mere  matter  of  form.  The  proposition  confronting  us  is 
not  what  the  pleader  meant  to  say,  but  what  did  he  say,  and  do  the 
terms  used  in  concluding  the  indictment  in  this  case  substantially  con- 
form to  the  requirements  prescribed  by  the  Constitution?  Constitu- 
tional requirements  are  not  ordinarily  to  be  regarded  as  mere  matters 
of  form.  As  was  said  in  Cox  v.  State,  8  Tex.  1.  c.  306  :  "  However 
much  we  may  feel  disposed  to  consider  a  matter  prescribed  by  the 
Constitution  ill-advised  or  useless  —  however  much  we  may  be  inclined 
to  doubt  the  propriety  of  inserting  into  the  organic,  fundamental  law 
of  the  State  requisites  of  forms  with  regard  to  procedure  and  practice 
in  the  courts,  —  the  answer  is,  the  people  themselves,  the  source  of  all 
power  and  authority  in  a  republican  government,  have  spoken  it ;  and 
with  regard  to  their  ipse  dixit,  when  contained  in  the  Constitution,  which 
is  but  the  expression  of  their  sovereign  will,  the  courts  can  only  bow 
in  humble  obedience,  and  say,  'ita  est  scripta.'  If  plain  and  unambig- 
uous, no  ordinary  rules  of  construction  are  applicable  to  these  expres- 
sions ;  their  inherent,  binding  authority  is  superior  to  all  ordinary 
rules." 

Mr.  Justice  Emott  in  People  v.  Lawrence,  36  Barb.  1.  c.  186,  in  dis- 
cussing a  constitutional  question,  used  this  language  :  "  It  will  be 
found,  upon  full  consideration,  to  be  difficult  to  treat  any  constitutional 
provision  as  merely  directory  and  not  imperative."  This  language  was 
fully  approved  by  Judge  Cooley.     [Coolej^'s  Const.  Lim.  (3  Ed.)  82.] 

In  Rice  /'.  State,  3  Heisl^:.  1.  c.  220,  it  was  clearly  as  well  as  forcibly 
announced  that  an  ' '  indictment  that  does  not  conclude  '  against  the 
peace  and  dignity  of  the  State '  is  a  nullity.  It  is  a  positive  injunc- 
tion of  the  Constitution  itself  that  such  shall  be  the  conclusion  of  every 
indictment.  It  is,  therefore,  a  matter  that  cannot  be  affected  by  legis- 
lation, and  a  defect  that  cannot  be  ignored  by  the  courts.  An  indict- 
ment without  these  words  is  not  an  accusation  of  crime,  and  not  an 
indictment  in  the  sense  of  the  Constitution.  No  conviction  upon  such 
an  indictment  could  be  permitted  to  stand,  and  a  prisoner  cannot  waive 
his  rights  in  this  respect,  as  it  is  the  imperative  mandate  of  the  Consti- 
tution that  all  crimes  shall  be  prosecuted  by  presentment  or  indictment, 
and  that  all  indictments  shall  conclude  '  against  the  peace  and  dignity 
of  the  State.'  The  conclusion  '  against  the  peace  and  dignity  of  the 
State'  cannot  be  dispensed  with."     [1  Green's  Cr.  Rep.  266.]     The 


SECT.    I.]  SERRA   V.    MORTIGA.  917 

same  doctrine  is  emphatically  declared  in  Thompson  v.  Commonwealth, 
20  Gratt.  724,  and  Carney's  Case,  4  Gratt.  546. 

In  Nichols  v.  State,  35  Wis.  308,  the  court,  treating  the  subject  of 
the  conclusion  prescribed  by  the  Constitution,  said:  "This  formula  is 
a  mere  rhetorical  flourish,  adding  nothing  to  the  substance  of  the  indict- 
ment, and  it  is  difficult  to  see  why  the  mandate  for  its  use  was  inserted 
in  the  Constitution.  Yet  it  is  there,  and  must  be  obeyed.  We  enforced 
obedience  to  it  in  Williams  v.  State,  27  Wis.  402.  Of  course,  the  ac- 
cused cannot  be  possibly  prejudiced  or  in  any  manner  misled  by  the 
omission  of  the  formula  from  an  indictment,  and  the  use  of  it  is  held 
necessary  for  the  sole  reason  that  the  Constitution  ordains  that  it  shall 
be  used." 

In  our  opinion  the  conclusion  prescribed  by  the  Constitution  of  this 
State  is  not  only  one  of  form,  but  as  well  one  of  substance:  "sub- 
stance,  because  the  Constitution  requires  it ;  "  and,  as  was  said  by  Mr. 
Bishop  in  the  announcement  of  the  rule,  "whatever  alters  the  substance, 
even  in  what  seems  unimportant,  will  render  it  void."  Our  conclusion 
upon  this  proposition  is  that  the  indictment  in  this  cause  fails  to  sub- 
stantially comply  in  its  conclusion  with  the  terms  prescribed  by  the 
Constitution,  and  therefore  should  be  held  invalid.^ 


SERRA   V.   MORTIGA. 
Supreme  Court  of  the  United  States.     1907. 

[Reported  204  U.  S.  470.] 

White,  J.  Articles  433  and  434,  found  in  chapter  1  of  title  IX  of 
the  Penal  Code  of  the  Philippine  Islands,  define  and  punish  the  crime 
of  adultery.     The  articles  referred  to  are  in  the  margin. - 

It  is  conceded  at  bar  that,  under  the  Philippine  law,  the  offence  of 
adultery,  as  defined  by  the  articles  in  question,  is  classed  as  a  private 
offence,  and  must  be  prosecuted,  not  on  information  by  the  public 
prosecutor,  but  by  complaint  on  behalf  of  an  injured  party.     In  the 

1  "  The  bill  of  rights  for  the  Philippines  giving  the  accused  the  right  to  demand  the 
nature  and  cause  of  the  accusation  against  him  does  not  fasten  forever  upon  those 
islands  the  inability  of  the  seventeenth  century  common  law  to  understand  or  accept  a 
jileadiiig  that  did  not  exclude  every  misinterpretation  capable  of  occurring  to  intelli- 
gence fired  with  a  desire  to  pervert."  Holmes,  J.,  in  Paraiso  v.  U.  S.,  207  U.  S.  368, 
372. 

2  Art.  433.  Adultery  should  be  punished  with  the  penalty  of  prisidn  correccional 
in  its  medium  and  maximum  degrees. 

Adultery  is  committed  by  a  married  woman  who  lies  with  a  man  not  her  husband 
and  by  him  who  lies  with  her  knowing  that  she  is  married,  although  the  marriage  be 
afterwards  declared  void. 

Art.  434.  No  penalty  shall  be  imposed  for  the  crime  of  adultery  except  upon  the 
complaint  of  the  aggrieved  husband. 

The  latter  can  enter  a  complaint  against  both  guilty  parties,  if  alive,  and  never,  if 
he  has  consented  to  th'i  adultery  or  pardoned  either  of  the  culprits. 


918  SERRA   V.    MORTIGA.  [CHAP.  XV. 

Court  of  First  Instance  of  Albay,  Eighth  Judicial  District,  Philippine 
Islands,  Adriano  Mortiga,  the  defendant  in  error,  as  the  husband  of 
Maria  Obleno,  filed  a  complaint  charging  her  with  adultery  committed 
with  Vicente  Serra,  the  other  plaintiff  in  error,  who  was  also  charged. 
The  complaint  is  in  the  margin.^ 

The  defendants  were  arraigned,  pleaded  not  guilty,  were  tried  by 
the  court  without  a  jury  and  were  convicted.  The  court  stated  its 
reasons  in  a  written  opinion,  analyzing  the  testimony  and  pointing  out 
that  all  the  essential  ingredients  of  the  crime  of  adultery,  as  defined 
by  the  articles  of  the  penal  code  already  referred  to,  were  shown  to 
have  been  committed.  The  accused  were  sentenced  to  pay  one-half 
of  the  costs  and  to  imprisonment  for  two  years,  four  months  and  one 
day.  The  record  does  not  disclose  that  any  objection  was  taken  to  the 
sufficiency  of  the  complaint  before  the  trial.  Indeed,  it  does  not  ap- 
pear that  by  objection  in  any  form,  directly  or  indirectly,  was  any 
question  raised  in  the  trial  court  concerning  the  sufl3ciency  of  the  com- 
plaint. An  appeal  was  taken  to  the  Supreme  Court  of  the  Philippine 
Islands.  In  that  coui't  error  was  assigned  on  the  ground,  first,  that 
"  the  complaint  is  null  and  void  because  it  lacks  the  essential  requisite 
provided  by  law ; "  and  second  and  third,  because  it  did  not  appear 
from  the  proof  that  guilt  had  been  established  beyond  a  reasonable 
doubt.  The  conviction  was  aflflrmed.  The  assignment  of  error,  which 
was  based  on  the  contention  that  the  conviction  was  erroneous  because 
the  complaint  did  not  sufficiently  state  the  essential  ingredients  of  the 

1  The  Uuited  States  of  America, 

Philipplue  Islands,  Eighth  Judicial  District : 

In  the  Court  of  First  Instance  of  Albay. 

The  United  States  and  Macario  Mercades,  in  Behalf  of  Adriano  Mortiga, 

V. 

Vicente  Serra  and  Maria  Obleno. 

The  undersigned,  a  practicing  attorney,  in  behalf  of  Adriano  Mortiga,  the  husband 
of  Maria  Obleno,  accuses  Viuceute  Serra  and  the  said  Maria  Obleno  of  the  crime  of 
adultery,  committed  as  follows  : 

That  on  or  about  the  year  1899,  and  up  to  the  present  time,  the  accused,  being  both 
married,  maliciously,  criminally  and  illegally  lived  as  husband  and  wife,  and  continued 
living  togetlier  up  to  the  present  time,  openly  and  notoriously,  from  wbich  illegal 
cohabitation  two  children  are  the  issue,  named  E]lias  and  Jose  Isabelo,  witliout  the 
consent  of  the  prosecuting  witness,  and  contrary  to  the  statute  in  such  cases  made  and 
provided. 

(Signed)  Macario  Mercades, 

Attorney  at  Law. 
(Signed)  Adriano  Mortiga. 

Albay,  February  24,  1904. 
Sworn  and  subscribed  to  before  me  this  24th  day  of  February,  1904. 

(Signed)        F.  Samson,  Clerk. 
Witnesses:  Adriano  Mortiga. 
Bernardo  Mortiga. 
EuLALio  Mortiga. 
Placido  Solano. 
Casimira  Marias. 


SECT.    I.]  SERR.V   V.    MORTIGA.  919 

offence  charged,  was  thus  disposed  of  by  the  court  in  its  opinion : 
"  The  objections  to  the  complaint,  based  upon  an  insufficient  statement 
of  the  facts  constituting  the  offence,  cannot  be  considered  here,  because 
they  were  not  presented  in  the  court  below.  United  States  v.  Sarabia, 
3  Off.  Gaz.  No.  29." 

The  assignments,  based  on  the  insuflSciency  of  the  proof  to  show 
guilt  beyond  a  reasonable  doubt,  were  disposed  of  by  an  analysis  of 
the  evidence  which  the  court  deemed  led  to  the  conclusion  that  all  the 
statutory  elements  of  the  crime  were  proven  beyond  a  reasonable 
doubt.  An  application  for  a  rehearing,  styled  an  exception,  was  made, 
in  which  it  was  insisted  that  it  was  the  duty  of  the  court  to  consider 
the  assignment  based  on  the  insufficiency  of  the  complaint,  since  not 
to  do  so  would  be  a  denial  of  due  process  of  law.  The  rehearing  was 
refused,  and  the  sentence  imposed  below  was  increased  to  three  years, 
six  months  and  twenty-nine  days,  on  the  ground  that  this  was  the 
minimum  punishment  provided  for  the  offence. 

The  errors  assigned  on  this  writ  of  error  and  the  propositions  urged 
at  bar  to  support  them  are  confined  to  the  assertion  that  the  refusal  of 
the  court  below  to  consider  the  assignment  of  error  concerning  the 
insufficiency  of  the  complaint  amounted,  to  a  conviction  of  the  accused 
without  informing  them  of  the  nature  and  character  of  the  offence  with 
which  they  were  charged,  and  was  besides  equivalent  to  a  conviction 
without  due  process  of  law.  It  is  settled  that  by  virtue  of  the  bill  of 
rights  enacted  by  Congress  for  the  Philippine  Islands,  32  Stat.  691, 
692,  that  guarantees  equivalent  to  the  due  process  and  equal  protection 
of  the  law  clause  of  the  Fourteenth  Amendment,  the  twice  in  jeopardy 
clause  of  the  Fifth  Amendment,  and  the  substantial  guarantees  of  the 
Sixth  Amendment,  exclusive  of  the  right  to  trial  by  jury,  were  ex. 
tended  to  the  Philippine  Islands.  It  is  further  settled  that  the  guar- 
antees which  Congress  has  extended  to  the  Philippine  Islands  are  to 
be  interpreted  as  meaning  what  the  like  provisions  meant  at  the  time 
when  Congress  made  them  applicable  to  the  Philippine  Islands.  Kep. 
ner  v.  United  States,  195  U.  S.  100. 

For  the  purpose,  therefore,  of  passing  on  the  errors  assigned  we 
must  test  the  correctness  of  the  action  of  the  court  below  by  sabstan- 
tially  the  same  criteria  which  we  would  apply  to  a  case  arising  in  the 
United  States  and  controlled  by  the  bill  of  rights  expressed  in  the 
amendments  to  the  Constitution  of  the  United  States,  ^jji'riing  to  the 
text  of  the  articles  of  the  Philippine  penal  code  upon  which  the  prose- 
cution was  based,  it  will  be  seen  that  an  essential  ingredient  of  the 
crime  of  adultery,  as  therein  defined,  is  knowledge  on  the  part  of  the 
man  charged  of  the  fact  that  the  woman  with  whom  the  adultery  was 
committed  was  a  married  woman.  Turning  to  the  complaint  upon 
which  the  prosecution  was  begun,  it  will  be  at  once  seen  that  it  was 
deficient,  because  it  did  not  specify  the  place  where  the  crime  was 
committed,  nor  does  it  expressly  state  that  Vicente  Serra,  the  accused 
man,  knew  that  Maria  Obleno,  the  woman  accused,  was  at  the  time  of 


920  SERRA  V.    MORTIGA.  [CHAP.  XV. 

the  guilty  cohabitation  a  married  woman.  It  results  that  there  were 
deficiencies  in  the  complaint  which,  if  raised  in  any  form  in  the  trial 
court  before  judgment,  would  have  required  the  trial  court  to  hold  that 
the  complaint  was  inadequate.  But  the  question  for  decision  is  not 
whether  the  complaint,  which  was  thus  deficient,  could  have  been  sus- 
tained, in  view  of  the  Constitutional  guarantees,  if  a  challenge  as  to  its 
suflBciency  had  been  presented  in  any  form  to  the  trial  court  before 
final  judgment,  but  whether,  when  no  such  challenge  was  made  in  the 
trial  court  before  judgment,  a  denial  of  the  guarantees  of  the  statutory 
bill  of  rights  arose  from  the  action  of  the  appellate  court  in  refusing 
to.  entertain  an  objection  to  the  sufficiency  of  the  complaint  because  no 
such  ground  was  urged  in  the  trial  court.  Thus  reducing  the  case  to 
the  real  issue  enables  us  to  put  out  of  view  a  number  of  decisions  of 
this  court  referred  to  in  the  margin,^  as  well  as  many  decided  cases  of 
state  courts  referred  to  in  the  brief  of  counsel,  because  they  are  irrele- 
vant, since  all  the  former  and,  if  not  all,  certainly  all  of  the  latter, 
concern  the  soundness  of  objections  made  in  the  trial  court,  by  the  ac- 
cused, to  the  sufficiency  of  indictments  or  informations. 

In  Ex  parte  Parks,  93  U.  S.  18,  the  case  was  this:  The  petitioner 
Parks  applied  to  this  court  for  a  writ  of  habeas  corpus.  He  had  been 
convicted  and  sentenced  for  the  crime  of  forgery  in  a  District  Court  of 
the  United  States.  The  ground  relied  upon  for  release  was  that  the 
indictment  stated  no  offence.  The  writ  was  discharged.  Speaking 
through  Mr.  Justice  Bradley,  it  was  said : 

"But  the  question  whether  it  was  not  a  crime  within  the  statute  was 
one  which  the  District  Court  was  competent  to  decide.  It  was  before 
the  court  and  within  its  jurisdiction. 

"  Whether  an  act  charged  in  an  indictment  is  or  is  not  a  crime  by 
the  law  which  the  court  administers  [in  this  case  the  statute  law  of  the 
United  States],  is  a  question  which  has  to  be  met  at  almost  every  stage 
of  criminal  proceedings  ;  on  motions  to  quash  the  indictment,  on  de- 
murrers, on  motions  to  arrest  judgment,  etc.  The  court  may  err,  but 
it  has  jurisdiction  of  the  question.  If  it  errs,  there  is  no  remedy,  after 
final  judgment,  unless  a  writ  of  error  lies  to  some  superior  court,  and 
no  such  writ  lies  in  this  case." 

In  United  States  v.  Ball,  163  U.  S.  662,  an  attempt  was  made  to 
prosecute  for  the  second  time  one  Millard  H.  Ball,  who  had  been  ac 
quitted  upon  a  defective  indictment,  which  had  been  held  bad  upon  the 
proceedings  in  error  prosecuted  by  others,  who  had  been  convicted  and 
who  had  been  jointly  prosecuted  with  Ball.  Reversing  the  court  below, 
the  plea  of  autrefois  acquit.,  relied  on  by  Ball,  was  held  good.  It  was 
pointed  out  that  the  acquittal  of  Ball  upon  the  defective  indictment 
was  not  void,  and,  therefore,  the  acquittal  on  such  an  indictment  was 

1  United  States  v.  Cook,  17  "Wall.  168,  174;  United  States  v.  Carll,  105  U.  S.  611 ; 
Dunbar  v.  United  States,  156  U.  S.  185;  Cochran  &  Sayres  v.  United  States,  157 
U.  S.  286;  Markham  v.  United  States,  160  U.  S.  319. 


SECT.  II.]  STATEMENT  OF  THE  CRIME.  921 

a  bar.  This  case  was  approvingly  cited  in  Kepner  v.  United  States, 
195  U.  S.  100,  120.  It  being  then  settled  that  the  conviction  on  a  de- 
fective indictment  is  not  void,  but  presents  a  mere  question  of  error  to 
be  reviewed  according  to  law,  the  proposition  to  be  decided  is  this: 
Did  the  court  below  err  in  holding  that  it  would  not  consider  whether 
the  trial  court  erred  because  it  had  not  decided  the  complaint  to  be 
bad,  when  no  question  concerning  its  sufficiency  was  either  directly  or 
indirectly  made  in  that  court  ?  Thus  to  understand  the  proposition  is 
to  refute  it.  For  it  cannot  be  that  the  court  below  was  wrong  in  re- 
fusing to  consider  whether  the  trial  court  erred  in  a  matter  which  that 
court  was  not  called  upon  to  consider  and  did  not  decide.  Undoubt- 
edly, if  a  judgment  of  acquittal  had  resulted  it  would  have  barred  a 
further  prosecution,  despite  the  defective  indictment.  Kepner  v.  United 
States,  supra. 

But  it  is  said  the  peculiar  powers  of  the  Supreme  Court  in  the  Phil- 
ippine Islands  take  this  case  out  of  the  general  rule,  since  in  that  court 
on  appeal  a  trial  de  novo  is  had  even  in  a  criminal  case.  But  as  pointed 
out  in  the  Kepner  case,  whilst  that  court  on  appeal  has  power  to  re- 
examine the  law  and  facts,  it  does  so  on  the  record  and  does  not  retry 
in  the  fullest  sense.  Indeed,  when  the  power  of  the  court  below  to 
review  the  facts  is  considered  that  power,  instead  of  sustaining,  refutes 
the  proposition  relied  on.  Thus  the  proposition  is  that  the  court  should 
have  reversed  the  conviction  because  of  the  contention  as  to  the  in- 
sufficiency of  the  complaint,  when  no  such  question  had  been  raised 
before  final  judgment  in  the  trial  court,  and  when,  as  a  necessary  con- 
sequence of  the  facts  found  by  the  court,  the  testimony  offered  at  the 
trial  without  objection  or  question  in  any  form  established  every  essen- 
tial ingredient  of  the  crime.  In  other  words,  the  contention  is  that 
reversal  should  have  been  ordered  for  an  error  not  committed  and 
when  the  existence  of  injury  was  impossible  to  be  conceived,  in  view 
of  the  opinion  which  the  court  formed  on  the  facts  in  the  exercise  of 
the  authority  vested  in  it  on  that  subject.  Affirmed. 

Mr.  Justice  Harlan  dissents. 


SECTION  II. 

Statement  of  the  Crime, 

2  Hawkins,  Pleas  of  the  Crown,  ch.  25,  Sects.  57,  59. 

The  special  manner  of  the  whole  fact  ought  to  be  set  forth  with  such 
certainty,  that  it  may  judicially  appear  to  the  court  that  the  indictors 
have  not  gone  upon  insufficient  premises.  And  upon  this  ground  it 
seems  to  be  agreed  that  an  indictment  finding  that  a  person  hath  feloni- 
ously broken  prison,  without  shewing  the  cause  of  his  imprisonment, 
&c. ,  by  which  it  may  appear  that  it  was  of  such  a  nature  that  the  break- 
ing might  amount  to  felony,  is  insufficient.  .  .  .  Also  it  seems  that 


922  REX    V.    LEDOINHAM.  [CHAP.  XV. 

an  iudictment  of  perjury,  not  shewing  in  what  manner  and  in  what 
court  the  false  oath  was  taken,  is  insufficient,  because  for  what  appears 
it  might  have  been  extrajudicial,  &c. 

Regularly  every  indictment  must  either  charge  a  man  with  some  par- 
ticular offence,  or  else  with  several  of  such  offences,  particularly  and 
certainly  expressed,  and  not  with  being  an  offender  in  general.  For 
no  one  can  well  know  what  defence  to  make  to  a  charge  so  uncertain, 
or  to  plead  it  either  in  bar  or  abatement  of  a  subsequent  prosecution  ; 
neither  can  it  appear  that  the  facts  given  in  evidence  against  a  defend- 
ant on  such  a  general  accusation,  are  the  same  of  which  the  indictors 
have  accused  him ;  neither  can  it  judicially  appear  to  the  court,  what 
punishment  is  proper  for  an  offence  so  loosely  expressed. 

2  Rolle's  Abridgement,  79.  An  indictment  of  a  man  that  he  is  a 
common  forestaller,  without  alleging  anything  certain,  is  not  good,  be- 
cause it  is  too  general.  29  Ass.  45,  adjudged.  See  3  E.  2,  actioji  sur  le 
statut,  26.  So  an  indictment  that  he  is  a  common  thief,  without  more, 
is  not  good.  29  Ass.  45 ;  22  Ass.  73,  3  E.  2,  action  sur  le  statut,  26. 
So  an  indictment  for  champerty  is  not  good  without  more.  29  Ass. 
45.  So  an  indictment  for  conspiracy  is  not  good  without  more.  29 
Ass.  45.  So  an  indictment  for  confederacy  is  not  good  without  more. 
Contra,  29  Ass.  45,  but  qiicere.  An  indictment  of  a  man  for  that  h^  is 
a  common  misfeasor  is  not  good,  because  it  is  too  general.  22  Ass.  73. 
So  an  indictment  that  he  is  communis  pads  Domini  Regis  perturhator, 
ac  diversas  lites  &  discordias  tarn  inter  vicinos  suos  quam  inter  diversos 
ligeos  &  subditos  domini  Regis  apud  W.  in  comitatu  predicto  injuste 
excitavit  moverit  <&  procuravit,  in  magnum  dispenditim  &  perturba- 
tionem  vicinorum  suorum  predictorum  &  aliorum  subditorum  domini 
Regis  in  comitatu  predicto  is  not  good,  because  too  general.  M.  6  Car. 
B.  R.  per  Curiam.     Indictment  quashed  in  Periam's  case. 


REX  V.  LEDGINHAM. 
King's  Bench.     1669. 

[Reported  1  Mod.  288.] 

Information  setting  forth  that  he  was  lord  of  the  manor  of  Ottery 
St.  Mary,  in  the  county  of  Devon,  wherein  there  were  many  copyholders 
and  freeholders,  and  that  he  was  a  man  of  an  unquiet  mind,  and  did 
make  unreasonable  distresses  upon  several  of  his  tenants,  and  so  was 
communis  opiwessor  et  perturbator  pads. 

It  was  proved  at  the  trial  that  he  had  distrained  four  oxen  for  three- 
pence, and  six  cows  for  eight-pence,  being  amercements  for  not  doing 
suits  of  court,  and  that  he  was  communis  ojypressor  et  perturbator  jJacis. 

The  defendant  was  found  guilty.  But  it  was  moved  in  arrest  of 
judgment  that  the  information  is  ill  laid  : 

First,  It  is  said  he  disquieted  his  tenants,  and  vexed  them  with  un- 


SECT.    II.]  COMMONWEALTH   V.    NEWBURY    BRIDGE.  923 

reasonable  distresses.     It  is  true,  that  is  a  fault,  but  not  a  fault  punish- 
able in  this  way;  for  by  the  statute  of  Marlebridge,  c.  4.  2.  Inst.  lOG,  7 
he  shall  be  punished  by  grievous  amercements;  and  where  the  statute 
takes  care  for  due  punishment,  that  method  must  be  observed. 

Secondly,  As  to  the  matter  itself,  they  do  not  set  forth  how  much  he 
did  take,  nor  from  whom ;  so  that  the  Court  cannot  judge  whether  it  is 
unreasonable  or  no,  nor  could  we  take  issue  upon  them. 

Thirdly,  As  to  the  communis  oppressor  et  perturhator  pacis^  they 
are  so  general,  that  no  indictment  will  lie  upon  them ;  as  in  Cornwall's 
case,  Jones,  302,  which  indeed  goeth  to  both  the  last  points. 

TvnsDEN,  J.  Communis  oppressor,  &c.,  is  not  good:  such  general 
words  will  never  make  good  an  indictment,  save  only  in  that  known 
case  of  a  barrator;  for  '^communis  barrecfator"  is  a  term  which  the 
law  takes  notice  of,  and  understands ;  it  is  as  much,  as  I  have  heard 
judges  say,  as  "a  common  knave,"  which  contains  all  knavery.  For 
the  other  point,  an  information  will  not  lie  for  taking  outrageous  dis- 
tresses. It  is  a  private  thing,  for  the  which  the  statute  gives  a  remedy» 
viz.  by  an  action  upon  the  statute  tam  quam. 

Per  Curiam.     It  is  naught.  —  Adjournatur, 


COMMONWEALTH  v.   NEWBURY  BRIDGE. 
Supreme  Judicial  Court  op  Massachusetts.     1829. 

[Reported  9  Pick.  142.] 

The  indictment  in  this  case  recites  that  by  a  statute  passed  March 
4,  1826  (St.  1825,  c.  164)  James  Prince  and  others  were  incorporated 
by  the  name  of  The  Proprietors  of  the  Newbury  port  Bridge,  and  that 
by  the  second  section  it  is  enacted  that  there  shall  be  a  draw  not  less 
than  thirty-eight  feet  wide,  and  a  suitable  pier  on  each  side  of  the 
bridge  at  the  draw.  The  indictment  then  alleges  that  the  defendants, 
on  and  from  the  1st  of  January,  1828,  to  the  taking  of  this  inquisition, 
"  have  neglected  and  still  do  neglect  to  provide  a  suitable  pier  on  each 
side  of  the  said  bridge  at  the  said  draw,  according  to  the  requirement 
of  the  act  aforesaid,  but  have  left  the  said  bridge  altogether  destitute  of 
any  pier  at  the  said  draw,  by  means  whereof  all  vessels  and  river  craft, 
having  masts  higher  than  will  readily  pass  under  the  said  draw,  are  ob- 
structed, hindered,  and  altogether  prevented  from  passing  said  bridge, 
to  the  common  nuisance,"  &c. 

At  the  trial,  before  Putnam,  J.,  the  defendants  objected  that  the  in- 
dictment was  found  too  soon,  inasmuch  as  the  three  years  allowed 
them  by  the  act,  for  completing  the  bridge,  had  not  expired  when  the 
indictment  was  found.  They  admitted  that  they  had  taken  toll  of 
passengers  for  upward  of  a  year.     The  objection  was  overruled. 

A  verdict  against  the  defendants  was  taken,  subject  to  the  opinion 
of  the  whole  court. 


;   .' 


924  COMMONWEALTH    V.    BEAN.  [CHAP.  XV. 

The  defendants  also  moved  in  arrest  of  judgment,  because  it  is  not 
alleged  in  the  indictment  that  any  bridge  had  been  built. 

Per  Cdriam.  The  answer  to  the  first  objection  is  that  the  defend- 
ants completed  the  bridge  and  took  toll;  and  if  so,  we  think  they 
were  bound  to  provide  the  means  prescribed  by  the  statute,  to  enable 
vessels  to  pass  with  convenience  through  the  draw. 

But  we  think  the  objection  that  the  indictment  does  not  allege  that 
any  bridge  has  been  built  is  fatal.  It  may  indeed  be  inferred  by  any 
common  reader  that  there  was  a  bridge ;  but  no  lawyer,  considering 
that  inferences  are  not  to  be  made  in  criminal  cases,  would  say  it 
appears  that  a  bridge  had  been  built.  There  ought  to  have  been  an 
express  allegation  to  that  effect.  Indictment  quashed. 


COMMONWEALTH  v.   BEAN. 
y  Supreme  Judicial  Court  of  Massachusetts.     1853. 

[Reported  11  Cush.  414.] 

The  defendant  was  indicted  upon  the  Rev.  Sts.  c.  126,  §  42,  which 
enacts  that  every  person  who  shall  "  maliciously  or  wantonly  break  the 
glass  or  any  part  of  it,  in  any  building  not  his  own,  or  shall  maliciously 
break  down,  injure,  mar,  or  deface  any  fence  belonging  to  or  inclosing 
lands  not  his  own,  or  shall  maliciously  throw  down  or  open  any  gate, 
bars,  or  fence,  and  leave  the  same  down  or  open,  or  shall  maliciously 
and  injuriously  sever  from  the  freehold  of  another  any  produce  thereof, 
or  anything  attached  thereto,  shall  be  punished  by  imprisonment  in  the 
county  jail,  not  more  than  one  year,  or  by  fine  not  exceeding  one  hun- 
dred dollars."  The  indictment  averred  that  the  defendant,  "  with  force 
and  arms,  wilfully,  maliciously,  wantonly,  and  without  cause,  did  break 
and  destroy  the  glass,  to  wit,  two  panes  of  glass  of  the  value  of  ten 
cents  each,  in  a  certain  building  there  situate,  not  his  own,  but  which 
building  then  and  there  belonged  to  and  was  the  property  of  one  Dorcas 
B.  Prentice,  &c." 

After  a  verdict  of  guilty,  the  defendant  moved  in  arrest  of  judgment, 
because  the  indictment  did  not  allege  that  the  glass  broken  was  a  part 
of  the  building,  but  only  that  it  was  in  a  building  not  his  own. 

Metcalf,  J.  It  is  admitted  by  the  counsel  for  the  Commonwealth, 
that  the  section  of  the  statute,  on  which  this  indictment  is  framed,  was 
intended  to  punish  the  malicious  and  wanton  breaking  of  glass  which 
is  part  of  a  building.  And  it  is  argued  by  him,  that  the  words  used  in 
the  indictment,  being  the  same  as  those  in  the  statute,  must  be  held  to 
Aave  the  same  meaning.  But  this  does  not  necessarily  follow.  The 
meaning  of  words  in  a  statute  may  be,  and  not  unfrequently  must  be, 
ascertained  by  examination  of  the  context.  In  the  present  case,  it  is 
from  the  context  that  the  words  "  glass  in  a  building"  are  understood, 
on  all  hands,  to  mean  glass  which  is  part  of  a  building.     But  the  court 


SECT.    II.j  STATE   V.    EUSSELL.  925 

in  ascertaining  the  offence  with  which  the  defendant  is  charged,  cannot 
look  beyond  the  words  of  the  indictment  itself.  If  those  words  do  not 
sufficiently  charge  the  offence  which  the  statute  was  meant  to  punish, 
the  indictment  is  fatally  defective.  2  Hawk.  c.  25,  §  111 ;  Comujon- 
wealth  V.  Slack,  19  Tick.  304  ;  Commonwealth  v.  Clifford,  8  Cush.  215  ; 
Commonwealth  v.  Stout,  7  B.  Monr.  247.  We  are,  therefore,  of  opin- 
ion that  the  indictment  in  this  case  will  not  sustain  a  judgment  against 
the  defendant.  For  aught  that  the  indictment  shows,  the  glass,  which 
he  is  charged  with  having  maliciously  and  wantonly  broken,  may  have 
been  panes  of  glass  which  were  not  a  part  of  any  building. 

Judgment  arrested. 


STATE  V.    RUSSELL. 
Supreme  Court  of  Rhode  Island.     1884. 

[Reported  14  R.  I.  506.] 

Exceptions  to  the  Court  of  Common  Pleas. 

May  22,  1884.     Durfee,  C.  J.     The  exceptions  raise  only  one  ques-. 
tion,  namely :  Is  a  complaint  under  Pub.  Stat.  R.  I.  cap.   244,  §  22, 
against  a  woman  for  being  a  common  night-walker  sufficient  if  it  simply 

^charges  her  with  being  a  common  night-walker  without  alleging  par- 
ticular acts?  It  is  well  settled  that  for  the  offence  of  being  a  common 
scold  or  a  common  barrator  such  a  charge  is  sufficient.  The  reason  is, 
the  offence  does  not  consist  of  particular  acts  but  of  an  habitual  prac- 
tice e\ddenced  by  a  series  of  acts.  It  may  be  argued  that  if  a  vicious 
practice  constitutes  the  offence,  then  the  practice  ought  to  be  alleged 
descriptively  in  the  complaint  or  indictment.  The  answer  is,  the  words 
"  common  scold"  and  "common  barrator"  are  words  having  a  techni- 
cal meaning  in  the  law,  and  that  they  import  ex  vi  terminorum  all  that 
would  be  expressed  if  the  practice  were  so  alleged.  In  State  v.  Dowers, 
45  N.  H.  543,  the  same  reasoning  was  held  to  be  applicable  where  the 
offence  is  the  offence  of  being  a  common  night-walker,  and  in  that  case 
it  was  decided  that  it  was  enough  to  charge  the  offender  with  being  a 
common  night-walker.  We  think  the  decision  was  correct.  The  words 
"  a  common  night-walker  "  are  words  having  a  technical  meaning  in  the 
law,  and  it  would  therefore  be  superfluous  to  spread  their  definition  on 

"the  record.  If,  for  the  purposes  of  defence,  the  accused  needs  more 
definite  information  than  the  record  affords,  she  should  ask  for  a  bill 
of  particulars,  which,  of  course,  in  so  far  as  the  offence  is  capable  of 
being  particularized,  ought  to  be  and  would  be  supplied.  Whar- 
ton's Crim.  Plead.  &  Prac.  §  155;  Commonwealth  v.  Davis,  11  Pick. 
432  ;  Commonwealth  v.  Pray,  13  Pick.  359  ;  Commonwealth  v.  Wood, 
4  Gray,  11.  £Jxceptions  overruled. 


^v7  /Tl.'V   Ay 


^w 


y 


926  REX    V.   .  [CHAP.  XV. 

SECTION  ni. 

Particular  Allegations. 

(a)  Name. 
REX  V.  . 


Old  Bailey.     1822. 

[Reported  Rtiss.  ^'  Ry.  489.] 

The  prisoner  was  indicted  at  the  Old  Bailey  sessions  in  January, 
1822,  by  the  description  of  a  person  whose  name  was  to  the  jurors  un- 
known. The  offence  with  which  he  was  charged  was  that  of  publishing 
a  blasphemous  and  seditious  libel. 

It  appeared  that,  when  apprehended,  he  refused  to  declare  his  name 
before  the  magistrate,  and  the  prosecutors,  not  being  able  to  discover 
his  name,  indicted  him  as  a  man  whose  name  was  unknown  to  the 
jurors.  When  called  to  the  bar,  the  indictment  was  read  to  him,  and  he 
then  refused  to  plead,  and  was  remanded.  At  the  following  sessions,  in 
the  month  of  February,  the  prisoner  was  again  called  to  the  bar  and  by 
the  advice  of  his  counsel  put  in  a  demurrer  in  writing  to  the  indictment. 
The  prosecutors  had  time  given  them  until  the  next  morning  to  reply ; 
but  before  they  could  do  so  the  prisoner,  by  his  counsel,  moved  the  court 
to  be  permitted  to  withdraw  his  demurrer,  which  was  granted  :  and  being 
then  called  on  for  his  plea,  he  pleaded  not  guilty;  and  being  told  that 
he  must  plead  by  some  name,  he  refused  to  give  in  any  name.  The 
learned  Recorder  was  of  opinion  that  his  plea  could  not  be  received 
without  a  name,  and  the  prisoner  was  again  remanded  for  want  of  a 
plea.  At  the  following  sessions  he  was  again  called  on  to  plead,  and 
again  pleaded  not  guilty;  but  refused  to  put  in  that  plea  by  any  name. 
He  was  again  told  that  the  court  could  not  receive  his  plea  unless  he 
would  plead  by  some  name ;  and,  as  he  persevered  in  his  refusal,  he 
was  again  remanded. 

As  this  case  appeared  to  be  without  precedent,  and  might  materially 
affect  the  administration  of  justice,  the  learned  Recorder  requested  the 
opinion  of  the  Judges  upon  the  following  points;  first,  whether  the 
prisoner  could  be  admitted  to  put  a  plea  on  the  record  without  a  name ; 
se^ndTyV  whether  such  a  plea  should  be  treated  as  a  mere  nullity,  and 
the  prisoner  be  remanded  from  time  to  time,  as  in  contempt  for  not 
pleading ;  thirdly,  whether  the  refusal  to  plead  by  name  would  entitle 
the  court  to  enter  up  judgment  by  default;  and,  fourthly,  whether, 
in  case  the  prisoner  should  ultimately  plead  by  name,  the  court  could 
proceed  to  tiy  him  upon  this  indictment  or  should  quash  the  indictment 
as  defective,  and  direct  a  fresh  indictment  to  be  preferred  against  him 
by  the  name  by  which  he  might  plead. 


SECT.    III.]  REGINA   V.    WILSON.  927 

In  Trinity  term,  1822,  this  case  being  presented  for  consideration, 
some  of  the  learned  Judges,  before  it  was  discussed,  suggested  that  the 
prisoner  might  be  indicted  as  a  person  whose  name  was  unknown,  but 
who  was  personally  brought  before  the  jurors  by  the  keeper  of  the 
prison.  An  indictment  was  preferred  accordingly,  and  the  prisoner 
was  convicted. 


REGINA   V.   JAMES. 
Central  Criminal  Court.     1847. 

[Reported  2  Cox  C.  C.  227.] 

The  indictment  charged  the  prisoner  with  assaulting  and  stealing 
from  a  female  "  two  rings,  &c.,  the  property  of  Jules  Henry  Steiner." 

The  female  was  the  wife  of  the  owner  of  the  property,  and  stated 
that,  to  the  best  of  her  knowledge,  her  husband's  name  was  Henry 
Jules  Steiner,  and  not  Jules  Henry  Steiner. 

Pollock^  C.  B.,  held  the  misnomer  fa,tal;  and  the  prisoner  was 
acquitted. 


REGINA  V.  WILSON. 
Crown  Case  Reserved.     1848. 

[Reported  2  Cox  C.  C.  426.] 

The  prisoner  was  convicted  at  Liverpool  during  the  last  Winter  As- 
sizes, before  Coltman,  J.,  who  respited  judgment  and  reserved  the 
following  case  :  — 

The  prisoner  was  tried  before  me  at  the  last  Special  Commission  for 
Liverpool. 

The  indictment  in  the  first  count  charged  that  on  &c.,  at  &c.,  the 
said  E.  Wilson  did  forge  a  certain  warrant  and  order  for  the  payment 
of  money,  which  said  warrant  and  order  for  payment  of  money  is  as 
follows  ;  that  is  to  say, — 

"No.  Liverpool,  Decembers,  1847. 

"To  the  cashiers  of  the  Liverpool  Borough  Bank: 

"  Pay or  bearer  two  hundred  and  fifty  pounds. 

"£250  Os.  Od.  John  McNicole  &  Co." 

with  intent  to  defraud  one  John  McNicole.^ 

It  was  objected,  on  behalf  of  the  prisoner,  that  the  signature  of  the 
prosecutor  to  the  cheque,  as  set  out  in  the  indictment,  being  John 
McNicole  and  Co.,  and  the  signature  to  the  cheque  proved,  John  Mc- 
Nicoll,  there  was  a  variance.  I,  however,  overruled  the  objection, 
being  of  opinion  that  the  substituting  of  the  letter  "  e  "  for  "  1 "  did  not 
make  it  a  different  name.     See  Williams  v.  Ogle,  2  Str.  889  ;  Aleberry 

1   Part  of  the  case,  not  involving  tlie  question  of  misnomer,  is  omitted. 


928  COMMONWEALTH    V.    PERKINS.  fCHAP.    XV. 

V.  Walby,  1  Str.  231 ;  Reg.  v,  Drake,  2  Salk.  660  ;  Eex  v.  Beach,  Cowp. 
230;   Rex  v.  Hart,  1  Leach,  145. 

The  jury  found  the  prisooer  guilty ;  but,  entertaining  some  doubt 
whether  the  conviction  was  right,  I  forbore  to  pass  sentence  on  him, 
and  request  the  opinion   of  the  judges  thereon. 

W.  B.  Brett,  for  the  prisoner.  —  Upon  the  point  of  variance  the  law 
is  clear ;  and  the  only  question  is,  whether  the  court  can  say  that  the 
two  names  are  so  identical  in  sound  that  no  person  could  be  misled. 

Conviction  affirmed. 


\ 


^  REGINA  V.  DAVIS. 

Crown  Case  Reserved.     1851. 

[Reported  6  Cox  C.  C.  237.] 

This  case  was  reserved  by  the  Dorsetshire  Sessions. 

The  prisoner  was  indicted  for  stealing  the  goods  of  Darius  Christo- 
pher. The  evidence  proved  the  prosecutor's  name  to  be  Tryus 
Christopher.  The  chairman  ruled  that,  in  Dorsetshire,  Darius  and 
Tryus  were  idem  sonantia,  but  requested  the  opinion  of  the  judges 
upon  the  correctness  of  that  ruling.  When  this  case  came  on  to  be 
heard,  on  the  8th  February,  before  Jervis,  C.  J.,  Alderson,  B.,  Williams, 
J.,  Piatt,  B.,  and  Martin,  B.,  the  court  intimated  that  it  was  a  question 
for  the  jury,  and  directed  the  case  to  be  sent  back,  in  order  that  it 
might  be  stated  whether  the  question  had  been  left  to  the  jury.  The 
case  was  now  returned,  with  a  statement  that  the  question  of  variance 
was  not  left  to  the  jury. 

Lord  Campbell,  C.  J.  — This  conviction  must  be  reversed.  If  it  is 
put  as  a  matter  of  law,  it  is  quite  impossible  for  this  court  to  say  that 
the  two  words  are  idem  sonantia.  The  objection  is  said  to  have  been 
taken  in  arrest  of  judgment ;  but  I  never  heard  of  such  a  ground  for 
arresting  the  judgment  since  the  great  case  of  Stradley  v.  Styles. 

Coleridge,  J.  —  No  doubt  a  Dorsetshire  jury  would  have  thought 
the  words  idem  sonantia.  Conviction  reversed. 


COMMONWEALTH  v.  PERKINS. 

Supreme  Judicial  Court,  Massachusetts.     1823. 

[Reported  1  Pick.  388.] 

The  defendant  being  indicted  by  the  name  of  Thomas  Perkins,  junior, 
for  a  nuisance  under  the  statute  against  gaming,  pleaded  in  abatement, 
at  April  term,  1822,  of  the  Municipal  Court,  that  his  name  was  Thomas 
Hopkins  Perkins.  The  county  attorney  demurred  generally,  and  there 
was  a  judgment  of  respondeas  ouster,  a  trial  upon  the  general  issue,  and 
an  appeal  to  this  Court. 

Per  Curiam,     It  is  said  on  behalf  of  the  Commonwealth  thoX,  junior 


SECT.    III.]  STATE   V.   LIBBY.  929 

is  no  part  of  the  name.  This  is  true,  but  another  objection  to  the  in- 
dictment is,  that  the  defendant  is  called  Thomas  instead  of  Thomas 
Hopkins.  In  5  D.  &  E.  195,  a  person  was  sued  by  the  Christian  name 
James  Richard  instead  of  Richard  James,  and  it  was  held  a  misnomer 
on  account  of  the  transposition.  The  indictment  must  give  the  defend- 
ant his  right  Christian  name.  Defendant  discharged. 


STATE  V.  LIBBY. 
Supreme  Judicial  Court  of  Maine.     1907. 

[Reported  103  Me.  147.] 

Spear,  J.  Numbers  264-265-266-279  and  280,  all  against  the  above 
named  respondent,  come  from  the  Superior  Court  for  Kennebec  County, 
September  term,  1905,  on  exceptions. 

These  are  all  indictments  found  against  C.  H.  Libby  for  a  violation 
of  the  law  against  the  sale  of  intoxicating  liquors.  The  respondent 
seasonably  filed  a  plea  in  abatement  in  proper  form  and  averred  that 
his  name  was  Cyrille  H.  Libby  and  not  C.  H.  Libby,  as  in  the  indict- 
ment alleged.  The  State  by  the  County  Attorney  filed  a  replication 
that  "  The  said  Cyrille  H.  Libby  who  appears  to  said  indictment,  is  the 
same  person  against  whom  said  indictment  was  presented,  and  is,  and 
at  the  time  of  finding  said  indictment  was,  called  and  known  as  well  by 
the  name  of  C.  H.  Libby,  as  by  the  name  of  Cyrille  H.  Libby  ;  and  this 
he  prays  may  be  inquired  of  by  the  country."  To  this  replication  the 
defendant  demurred  and  the  County  Attorney  for  the  State  joined  the 
demurrer.  The  demurrer  was  overruled  and  the  replication  adjudged 
good.  The  demurrer  admitted  all  the  facts  stated  in  the  replication. 
The  only  question  therefore  presented  by  the  exceptions  is,  if  a  person 
is  as  well  known  by  the  initials  C.  H.  as  by  the  name  Cyrille  H.,  can 
he  be  properly  indicted  in  the  name  of  the  initials?  ;     ,.    ^ 

In  Robbins  V.  Swift,  86  Maine,  197,  it  was  held:  "  Ltetters  of  the 
alphabet,  consonants  as  well  as  vowels,  may  be  names  sufficient  to  dis- 
tinguish different  persons  of  the  same  surname."  If,  therefore,  the 
letters  of  the  alphabet  or  initials  may  be  used  to  distinguish  different 
persons  of  the  same  surname,  and  the  respondent  admits  that  he  is  as 
well  known  by  the  lett^prs  of  the  alphabet  or  the  initials  as  by  his  full 
Christian  name,  we  can  discover  no  logical  reason  why  the  indictment 
is  not  sufficient.  Certainty  is  the  object  aimed  at  in  requiring  the  inser- 
tion of  correct  names  in  an  indictment,  and  we  know  of  no  way  in  which 
greater  certainty  could  be  attained  than  by  the  admissions  of  the  re- 
spondent, himself,  as  disclosed  by  the  pleadings  in  this  case. 

Exceptions  overruled. 


930  REX    V.    NAPPEK.  [chap.  XV. 

SECTION   III.   {continued). 
(b)  Time  and  Place. 

SIR  HENRY   VANE'S   CASE. 
King's  Bench.     1663. 

[Repoi'ted  Kelyng,  14.] 

Memorandum,  That  in  Trinity  Term,  14  Car.  2,  Sir  Hen.  Vane  was 
indicted  at  the  King's  Bench  for  compassing  the  death  of  King  Charles 
the  2d,  and  intending  to  change  the  kingly  government  of  this  nation; 
and  the  overt  acts  which  were  laid  were,  that  he  with  divers  other 
Unknown  persons  did  meet  and  consult  of  the  means  to  destroy  the 
king  and  government ;  and  did  take  upon  him  the  government  of  the 
forces  of  this  nation  by  sea  and  land,  and  appointed  colonels,  captains, 
and  officers,  and  the  sooner  to  effect  his  wicked  design,  did  actually 
in  the  County  of  Middlesex  raise  war.^ 

Although  the  treason  of  compassing  the  king's  death  was  laid  in  the 
indictment  to  be  the  30th  of  May,  11  Car.  2,  yet  upon  the  evidence  it 
appeared,  that  Sir  Hen.  Vane,  the  very  day  the  late  king  was  murdered, 
did  sit  in  Council  for  the  ordering  of  the  forces  of  the  nation  against  the 
king  that  now  is,  and  so  continued  on  all  along  until  a  little  before  the 
king's  coming  in.  It  was  resolved  that  the  day  laid  in  the  indictment 
is  not  material,  and  the  jury  are  not  bound  to  find  him  guilty  that  day, 
but  may  find  the  treason  to  be  as  it  was  in  truth  either  before  or  after 
the  time  laid  in  the  indictment ;  as  it  is  resolved  in  Syer's  case,  Co.  PI. 
Coron.  230.  And  accordingly  in  this  case  the  jury  found  Sir  H.  Vane 
guilty  of  the  treason  in  the  indictment  the  30th  of  January,  1  Car.  2, 
which  was  from  the  very  day  the  late  king  was  murdered,  and  so  all  his 
forfeitures  relate  to  that  time  to  avoid  all  conveyances  and  settlements 
made  by  him. 

REX  V.    NAPPER. 
Crown  Case  Reserved.     1824. 

[Reported  1  Moo.  Cr.  C.  44.]    " 

The  prisoner  was  tried  and  convicted  before  Mr.  Justice  Bayley,  at 
the  Summer  Assizes  for  Lancaster  in  the  year  1824,  of  stealing  in  a 
dwelling-house;  but  a  doubt  having  occurred  whether  the  situation  of 
the  house  was  sufficiently  described  in  the  indictment,  the  learned  Judge 
submitted  that  point  to  the  consideration  of  the  Judges. 

The  indictment  stated  that  the  prisoner,  on  the  6th  August,  5  Geo. 
4,  at  Liverpool,  in  the  county  aforesaid,  one  coat,  value  forty  shillings, 

^  Part  of  the  case,  not  involving  the  allegation  of  time,  is  omitted. 


SECT.    III.]  STATE   V.    SEXTON.  931 

&c.,  of  the  goods  and  chattels  of  Daniel  Jackson^  in  the  dwelling- 
house  of  William  Thomas,  then  and  there  being,  then  and  there  did 
feloniously  steal,  &c. 

The  doubt  was,  whether  it  should  not  have  been  stated  "in  the 
dwelling-house  of  William  Thomas,  there  situate."  Indictments  for 
burglary  and  arson  generally  contain  such  a  statement,  and  so  do  indict- 
ments for  breaking  a  house  in  the  daytime,  or  demolishing  a  house. 

In  Michaelmas  Term  1824,  the  Judges  met  and  considered  this  case, 
and  held  that  the  indictment  showed  sufficiently  that  the  house  was 
situate  at  Liverpool,  anji  that  the  conviction  was  therefore  proper. 


STATE  V.   SEXTON". 
Supreme  Court  of  North  Carolina.     1824. 

[Reported  3  Hawks,  184.] 

Indictment  for  an  assault  with  intent  to  kill,  tried  before  Paxton,  J. 
The  bill  was  found  in  March  Term,  1824,  and  charged  the  offence  to 
have  been  committed  on  the  19th  day  of  August,  1824.  The  defendant 
was  put  upon  his  trial  at  the  same  Term  in  which  the  bill  was  found, 
and  after  the  jury  was.  impanelled,  the  prosecuting  officer  moved  the 
court  to  amend  the  indictment  as  to  the  day  on  which  the  offence  is 
charged  to  have  been  committed.  The  court  overruled  the  motion, 
and  the  jury  found  the  defendant  guilty,  in  manner  and  form  as  charged 
in  the  bill  of  indictment,  and  judgment  was  arrested,  because  the  offence 
was  laid  to  have  been  committed  on  a  day  yet  to  come. 

Per  Curiam.  It  is  a  familiar  rule  that  the  indictment  should  state 
that  the  defendant  committed  the  offence  on  a  specific  day  and  year,  but 
it  is  unnecessary  to  prove,  in  any  case,  the  precise  day  or  year,  except 
where  the  time  enters  into  the  nature  of  the  offence.  But  if  the  indict- 
ment lay  the  offence  to  have  been  committed  on  an  impossible  day, 
or  on  a  fuj;ure  day,  the  objection  is  as  fatal  as  if  no  time  at  all  had  been 
inserted.  Nor  are  indictments  within  the  operation  of  the  Statutes  of 
Jeofails,  and  cannot,  therefore,  be  amended  ;  being  the  finding  of  a 
jury  upon  oath,  the  court  cannot  amend  without  the  concurrence  of 
the  Grand  Jury  by  whom  the  bill  is  found.  These  rules  are  too  plain 
to  require  authority,  and  shew  that  the  judgment  of  the  court  was 
right,  and  must  be  affirmed. 


r 


932  COMMONWEALTH    V.    TOLLIVER.  [CHAP.  XV. 


STATE  V.   SMITH. 
Delaware.     185-. 

[Reported  5  Harr.  490.] 

The  defendant  was  indicted  and  convicted  for  disturbing  a  religious 
Society  of  Methodists  in  Mispillion  hundred,  assembled  for  the  purpose 
of  religious  worship. 

Mr.  Coviegys  moved  in  arrest  of  judgment  that  the  indictment  was 
not  sufficiently  certain  as  to  place.  Religious  meetings  of  the  Methodists 
were  held  at  other  places  in  Mispillion  hundred  than  at  the  private 
house  where  this  meeting  was  held,  and  this  indictment  did  not  cer- 
tainly inform  the  defendant  ivhat  meeting  he  was  charged  with  disturb- 
ing.    {Euss.  Or.  837,  7i.) 

The  Court  denied  the  motion,  saying:  The  indictment  is  in  the 
usual  form,  and  is  framed  under  the  act  of  assembly.  Even  without 
an  act  of  assembly,  this  would  be  an  indictable  offence,  as  the  Christian 
religion  is  protected  by  the  common  law.  Unless  time  or  place  enter 
into  the  crime  itself,  it  is  not  material  to  state  or  prove  it.  The  locality 
of  a  road  enters  into  the  charge  of  obstructing  it.  But  as  to  disturbing 
a  religious  society,  the  place  is  unimportant,  if  within  the  county.  It 
is  not  necessary  that  the  place  should  be  specifically  laid  to  guard 
against  another  trial,  for  the  identity  of  the  two  cases  is  to  be  tried 
by  the  jury,  on  a  plea  of  former  acquittal  or  conviction. 


COMMONWEALTH   v.   TOLLIVER. 
Supreme  Judicial  Court  of  Massachusetts.     1857. 

[Reported  8  Gray,  386.] 

Indictment  for  an  assault  upon  John  Woods,  at  Boston.  At  the 
trial  in  the  Municipal  Court,  Abbott,  J. ,  allowed  the  county  attorney 
to  introduce  evidence  to  prove  an  assault  upon  Woods  in  Chelsea,  not- 
withstanding the  defendant's  objection  that  this  was  a  variance.  The 
defendant,  being  convicted,  alleged  exceptions. 

Dewey,  J.  In  criminal  prosecutions  of  a  character  like  the  present, 
it  is  unnecessary  to  prove  the  place  of  committing  the  offence  to  be 
precisely  in  accordance  with  the  allegation  in  the  indictment.  Place  is 
immaterial,  unless  when  it  is  matter  of  local  description,  if  the  offence 
be  shown  to  have  been  committed  within  the  county.  All  that  is  neces- 
sary to  be  shown  is  that  the  offence  was  committed  at  any  place  within 
the  county.  2  Hawk.  c.  25,  §  84 ;  2  Russell  on  Crimes  (7th  Amer. 
ed.)  799  ;  1  Archb.  Crim.  PI.  (5th  Amer.  ed.)  99.  It  was  no  objection 
therefore  to  the  competency  of  the  evidence  offered,  that  it  tended  to 
prove  an  assault  committed  in  Chelsea,  while  the  indictment  alleged  the 


SECT.    III.]  COMMONWEALTH    V.    TRAVERSE.  933 

Bame  to  have  been  committed  at  Boston,  both  places  being  within  the 
count}^  of  Suffolk,  and  equally  within  the  jurisdiction.  This  rule  has 
been  so  long  recognized  and  acted  upon  that  the  case  presents  no  new 
or  doubtful  question  to  be  solved.  Exceptions  overruled. 


COMMONWEALTH   v.   TRAVERSE. 
Supreme  Judicial  Court  of  Massachusetts.     1865. 

[Reported  1 1  All.  260.] 

Complaint  dated  April  3d,  1865,  charging  that  the  defendant  "  on 
the  third  day  of  April,  in  the  year  of  our  Lord  eighteen  hundred  and 
sixty-five,  at  Newton,  in  the  County  of  Middlesex,  within  six  months 
last  past,"  was  a  common  seller  of  intoxicating  liquors  in  violation 
of  law. 

At  the  trial  in  the  Superior  Court  before  Wilkinson,  J.,  on  appeal 
from  the  judgment  of  the  magistrate,  convicting  the  defendant,  the  dis- 
trict attorney  oflTered  no  evidence  of  sales  on  the  3d  of  April,  1865,  but 
relied  upon  evidence  of  sales  made  at  several  times  within  six  months 
before  that  day.  The  defendant  objected  to  this  evidence,  but  it  was 
admitted,  and  the  defendant  was  found  guilty,  and  alleged  exceptions. 

Dewey,  J.  A  well  settled  distinction  has  long  prevailed  as  to  the 
mode  of  alleging  the  time  of  the  commission  of  an  offence  which  con- 
sists of  a  single  act,  and  that  adopted  in  that  class  of  cases  where  the 
alleged  offence  consists  of  a  series  of  distinct  acts.  In  the  former, 
the  precise  day  alleged  is  not  material,  and  the  evidence  of  such  single 
act  before  or  since  the  day  alleged,  if  before  the  finding  of  the  indict- 
ment and  within  the  period  permitted  by  the  statute  of  limitations,  is 
sufficient. 

On  the  other  hand,  in  the  cases  where  the  offence  consists  of  a  series 
of  acts,  the  practice  is  to  allege  the  same  to  have  been  committed  on 
aTcertain  day  named,  and  on  divers  days  and  times  between  that  day 
and  some  subsequent  day  named.  The  allegation  that  the  acts  were 
done  between  a  certain  day  named  and  the  day  of  the  finding  of  the 
indictment  has  also  been  held  sufficiently  to  designate  the  time  of  the 
commission  of  the  offence.  This  form  of  stating  the  time,  as  allowed 
in  this  class  of  cases,  gives  to  the  prosecutor  great  latitude  in  the  alle- 
gation of  time,  but,  having  fixed  it  by  the  indictment,  the  government 
is  bound  by  it.  And  this  has  been  held  to  be  the  rule  where  the  acts 
constituting  such  offence  are  alleged  to  have  been  committed  on  a 
certain  day  named.  The  evidence  must  be  confined  to  that  day,  and 
evidence  of  the  commission  of  the  offence  before  or  after  that  day  is 
incompetent.  Commonwealth  v.  Elwell,  1  Gray,  462  ;  Commonwealth 
u.  Gardner,  7  Gray,  494 ;  Commonwealth  v.  Sullivan,  5  Allen,  513. 

The  further  inquiry  is,  whether  this  complaint  has  properly  charged 
an  offence  on  any  other  day  than  the  third  day  of  April.     We  are  not 


934  STATE    V.    BEATON.  [CHAP.  XV. 

disposed  to  favor  any  greater  laxity  in  the  form  of  the  indictment  in 
this  class  of  cases  than  has  been  already  sanctioned.  Here  the  usual 
order  of  such  allegation  of  the  time  is  reversed.  Instead  of  alleging 
the  commission  of  the  offence  on  a  certain  day,  and  on  divers  days  and 
times  subsequently  between  that  day  and  a  day  named,  the  allegation 
is  "  within  six  months  last  past."  We  do  not  say  that  this  charge 
would  be  fatally  bad,  had  there  been  no  other  defect  in  stating  the 
time.  But  there  is  no  connecting  word  between  the  allegation  of  an 
offence  committed  on  the  third  of  April,  and  the  further  allegation, 
"within  six  months  last  past."  It  may  be  read  as  an  averment  that 
the  third  day  of  April  was  within  six  months  last  past.  We  think 
the  only  offence  properly  charged  here  is  that  of  being  a  common 
seller  of  intoxicating  liquors  on  April  3d,  1865.  As  already  stated, 
the  allegation  as  to  time  is  a  material  one,  and  the  govei'nment  must 
prove  the  offence  to  have  been  committed  on  that  day. 

Exceptions  sustained. 


STATE  V.  JOHNSON. 
Supreme  Court  of  Texas.     1869. 

[Reported  32  Texas,  96.] 

Appeal  from  Smith.     Tried  below  before  the  Hon.  Samuel  L.  Earle. 

The  appellee  was  indicted  for  the  theft  of  $160  in  coin  and  $60  in 
currency,  the  property  of  B.  H.  Denson.  The  indictment  was  quashed 
on  his  motion,  and  the  district  attorney  appealed  on  behalf  of  the 
State. 

Lindsay,  J.  The  motion  to  quash  the  indictment  in  this  case  was 
properly  sustained.  There  is  no  allegation  in  it,  of  either  the  time  or 
of  the  place  of  the  commission  of  the  offence.  The  first  is  necessary, 
that  it  may  appear  from  the  charge  it  is  not  barred  by  the  statute  of 
limitations.  The  other  is  indispensable,  that  the  court  may  know 
whether  it  has  jurisdiction  of  the  cause.  For  these  defects  it  was 
rightfully  quasTied.     The  judgment  is  affirmed.  Affirmed. 


STATE  V.  BEATON. 
Supreme  Judicial  Court  of  Maixe.     1887. 

[Reported  79  Maine,  314.] 

On  exceptions  to  the  ruling  of  the  court  in  overruling  the  defendant's 
demurrer  to  the  complaint. 

An  appeal  from  the  decision  of  a  trial  justice  on  a  complaint  and 
warrant  for  fishing  for  and  catching  lobsters  in  violation  of  law. 

Walton,  J.  Neither  a  complaint  nor  an  indictment  for  a  criminal 
offence  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 


SECT.    III.]  STATE   V.    DODGE.  935 

andj^ear^on  which  the  supposed  offence  was  committed.  In  this  par- 
ticular, the  complaint  in  this  case  is  fatally  defective.  It  avers  that  "-on 
sundry  and  divers  days  and  times  between  the  twenty-third  day  of  Sep- 
tember, A.  D.  1885,  and  the  thirtieth  day  of  September,  A.  D.  1885," 
the  defendant  did  the  acts  complained  of.  But  it  does  not  state  any 
particular  day  on  which  any  one  of  the  acts  named  was  committed. 
Such  an  averment  of  time  is  not  sufficient.  State  v.  Baker,  34  Maine, 
52 ;   State  v.  Hanson,  39  Maine,  337,  and  authorities  there  cited. 

Exceptions  sustamed.     Complaint  quashed. 


STATE  V.  DODGE. 
Supreme  Judicial  Court  of  Maine.     1889. 

[Reported  SI  Maine,  391.] 

Haskell,  J.^  "  Neither  a  complaint  nor  an  indictment  for  a  criminal 
offence  is  sufficient  in  law,  unless  it  states  the  day,  as  well  as  the  month 
and  year  on  which  the  supposed  offence  was  committed."  State  v. 
Beaton,  79  Maine,  314. 

An  act,  prohibited  by  statute  on  certain  particular  days  only,  must 
be  charged  as  having  been  committed  on  one  of  those  particular  days  ; 
for  the  time  laid  is  a  material  element  in  the  offence,  and,  unless  laid 
on  a  day  within  the  statute,  no  offence  would  be  charged.  In  the  case 
at  bar,  both  time  and  place  are  material  elements  to  constitute  the  stat- 
ute offence.     State  v.  TurnbuU,  78  Maine,  392. 

Thestatute  prohibits  the  maintaining  of  closed  weirs  in  certain  inland 
waters  on  Saturdays  and  Sundaj^s  between  April  1st  and  July  15th. 
R.  S.,  c.  40,  §  43.  The  indictment  charges  the  maintaining  of  the  weir 
on  June  1st,  Tuesday,  not  close  time,  and  on  divers  other  days  and 
times  between  that  day  and  July  15th.  All  this  may  have  been  law- 
fully done.  Saturday  and  Sunday  are  not  pointed  out  as  among  the 
"  divers  other  days  and  times."  The  defendants  are  presumed  to  have 
regarded  law,  not  to  have  violated  it. 

True,  the  indictment  avers  that  during  Saturday  and  Sunday,  June 
12  and  13,  the  defendants  were  bound  to  carry  and  keep  on  shore  the 
netting  which  closes  that  part  of  the  weir  where  fish  are  usually  taken, 
and  that  they  did  not  do  it.  But  if  they  did  not  maintain  the  weir  on 
those  days  they  had  no  need  to  do  it.  It  is  said  that  the  last  clause  in 
the  indictment  sufficiently  charges  the  offence.  But  the  trouble  with 
that  clause  is,  that  it  assumes  what  is  nowhere  alleged,  that  the  defend- 
ants during  some  Saturday  or  Sunday  maintained  the  weir. 

It  is  best  for  the  proper  administration  of  justice,  that  reasonable 
exactness  and  precision  of  statement  be  required  from  those  officers  of 
the  law  selected  on  account  of  their  professional  skill  in  this  behalf. 

Exceptions  sustained. 

^  The  opinion  only  is  given ;  it  sufficiently  states  the  case. 


936  EEGINA    V.   MANSFIELD.  [CHAP.  XV. 


SECTION  III.    {continued). 
(c)    Description. 

EEGINA  V.  MANSFIELD. 
Nisi  Prius.     1841. 

[Reported  Car.  ^-  Marsh.  140.] 

The  prisoner  was  indicted  for  receiving  "25  lbs.  weight  of  tin," 
knowing  the  same  to  have  been  stolen.  The  indictment  had  been  re- 
moved by  certiorari,  and  came  on  to  be  tried  at  Nisi  Prius.  There  were 
two  other  indictments  against  the  same  prisoner,  the  one  for  stealing 
iron,  and  the  other  for  receiving  brass,  knowing  it  to  have  been  stolen. 

It  appeared  that  the  tin  in  question  consisted  of  two  pieces,  which  a 
witness  called  '•'  lumps  of  tin  ;  "  but  on  cross-examination  he  admitted 
that  they  were  called  in  the  trade  "  ingots,"  but  added  that  that  term 
was  applied  as  well  to  the  pieces  of  tin  as  to  the  mould  in  which  they 
were  cast,  and  was  applied  to  the  shape.  The  tin  in  question  had  been 
cast  into  the  pieces  for  the  purpose  of  being  again  melted  up  for  use  in 
the  prosecutor's  manufactory,  and  in  the  middle  of  each  was  an  inden- 
tation for  the  purpose  of  breaking  them  in  two,  when  wanted  to  be 
melted  up  again. -^ 

Upon  the  close  of  the  case  for  the  prosecution,  Ludloiv,  Serjt.,  for 
the  prisoner,  submitted  that  the  tin  was  misdescribed.  Instead  of  being 
laid  as  so  many  pounds'  weight  of  tin,  it  ought  to  have  been  described  as 
two  ingots.  Wherever  an  article  has  obtained  a  name  in  the  trade 
which  is  applicable  to  it,  it  must  be  described  by  that  name.  From  the 
case  of  Rex  v.  Stott,  2  Ea.  P.  C.  752,  it  would  seem  that  it  was  erro- 
neous to  charge  the  prisoner  with  stealing  so  many  pounds'  weight  of 
iron,  where  it  appeared  that  the  articles  stolen  were  actually  manufac- 
tured. It  would  be  bad  to  describe  a  piece  of  cloth  as  so  many  pounds 
of  wool.     The  object  is  to  enable  the  prisoner  to  plead  autrefois  acquit. 

Talfonrd,  Serjt.,  and  Greaves.  Rex  r.  Stott  is  quite  different  from  the 
present  case  ;  there  the  goods  were  actually  made  up  into  articles,  which 
had  specific  names  ;  here  the  article  was  still  tin,  and  only  put  in  the  shape 
in  which  it  was,  for  the  purpose  of  being  afterwards  manufactured;  it 
is  in  the  course  of  manufacture,  not  manufactured.  Although  it  would 
be  bad  to  describe  cloth  as  so  many  pounds  of  wool,  still  an  end  of  a 
bale  of  cloth  may  well  be  described  as  so  many  yards  of  cloth ;  so  a 
leg  of  mutton  may  be  described  as  so  many  pounds'  weight  of  mutton. 
As  to  the  objection  that  the  party  could  not  plead  autrefois  acquit,  it  is 
the  same  question :  for  if  the  description  is  sufficient  here,  it  would  be 
sufficient  if  autrefois  acquit  were  pleaded.     It  is  idem  per  idem. 

1  Part  of  the  case,  not  relating  to  the  question  of  pleading,  is  omitted. 


Sc'^  nj 


SECT.    Ill,]  STATE    V.    NOBLE.  937 

Coleridge,  J.  It  seems  to  me  that  the  description  is  sufficient  to 
answer  all  the  purposes  which  are  required  by  law.  First,  it  is  the 
subject  of  larceny  equally,  whether  it  be  an  ingot  or  so  many  pounds' 
weight  of  tin.  Secondly,  as  to  the  facility  of  pleading  autrefois  acquit^ 
the  prisoner  stands  in  the  same  situation,  whether  it  be  one  or  the  other, 
because  there  must  be  some  parol  evidence  in  all  cases  to  shew  what  it 
was  that  he  was  tried  for  before,  and  it  would  be  as  easy  to  prove  one 
as  the  other.  The  last  question  is,  whether  it  is  described  with  suffi- 
cient certainty,  in  order  that  the  jury  may  be  satisfied  that  it  is  the 
thing  described.  If  this  had  been  some  article  that,  in  ordinary  par- 
lance, had  been  called  by  a  particular  name  of  its  own,  it  would  have 
been  a  wrong  description  to  have  called  it  by  the  name  of  the  material 
of  which  it  was  composed,  as  if  a  piece  of  cloth  were  called  so  many 
pounds  of  wool,  because  it  has  ceased  to  be  wool,  and  nobody  could 
understand  that  you  were  speaking  of  cloth.  It  would  be  wrong  to  say 
so  many  ounces  of  gold,  if  a  man  stole  so  many  sovereigns  ;  you  would 
there  mislead  by  calling  it  gold.  If  it  were  a  rod  of  iron,  it  would  be 
sufficient  to  call  it  so  many  pounds'  weight  of  iron. 

The  case  went  to  the  jury,  who  returned  a  verdict  of  — 

Not  guilty. 


STATE  V.   NOBLE.  "^ 

Supreme  Judicial  Court  of  Maine.     1839. 

[Reported  15  Maine,  476.] 

Exceptions  from  the  Court  of  Common  Pleas,  Smith,  J.,  presiding. 

Noble  was  indicted  for  fraudulently  and  wilfully  taking  fi'om  the 
Kennebec  River  and  converting  to  his  own  use  certain  logs. "  He  was 
found  guilty  on  the  first  count  only,  thus  describing  the  log:  "  One 
pine  log  marked  H  X  W,  of  the  value  of  three  dollars,  of  the  goods  and 
chattels  of  J.  D.  Brown,  Charles  Mclntire,  and  John  Welch,  and  not 
the  property  of  said  Noble."  The  evidence  applied  entii'ely  to  a  pine 
log  marked  '-W  X  H  X  w;ti7i  a  girdle"  or  circle  cut  round  it.  Brown 
testified  that  one  of  their  logs,  partly  sawed  into  blocks,  with  the  mark 
last  mentioned  was  seen  by  him  near  Noble's  house,  "  but  that  the  log 
described  in  the  first  count  of  the  indictment  was  not  of  their  mark,  and 
that  he  should  not  claim  or  know  it  as  their  property."  Other  objec- 
tions were  made,  besides  that  ai'ising  from  variation  in  the  description 
in  the  indictment  and  the  proof,  which  need  not  be  stated,  nor  the  facts 
on  which  they  were  founded.  The  Judge  on  this  point  instructed  the 
jury  that  the  mark  by  which  the  log  was  described  in  the  first  count 
might  be  rejected  as  surplusage,  and  if  they  found  that  the  log  which 
was  seen  near  Noble's  house  was  removed  from  the  river  and  sawed  by 
him,  with  the  intention  fraudulently  and  wilfully  to  convert  it  to  his 
own  use,  and  that  the  same  log  was  the  property  of  said  Brown,  Mc- 


938  HASKINS    V.    THE    PEOPLE.  [CHAP.   XV. 

Intire,  and  Welch,  then  they  would  find  Noble  guilty  on  the  first  count. 
Noble  excepted  to  this  instruction.^ 

Weston,  C.  J.  It  may  be  regarded  as  a  general  rule,  both  in  crim- 
inal prosecutions  and  in  civil  actions,  that  an  unnecessary  averment 
may  be  rejected,  where  enough  remains  to  show  that  an  offence  has 
been  committed,  or  that  a  cause  of  action  exists.  In  Ricketts  v.  Solway, 
2  Barn.  &  Aid.  360,  Abbott,  C.  J.,  says,  "  There  is  one  exception  how- 
ever to  this  rule,  which  is,  where  the  allegation  contains  matter  of  de- 
scription. Then  if  the  proof  given  be  different  from  the  statement,  the 
variance  is  fatal."  As  an  illustration  of  this  exception,  Starkie  puts 
the  case  of  a  man  charged  with  stealing  a  black  horse.  The  allegation 
of  color  is  unnecessary,  yet  as  it  is  descriptive  of  that  which  is  the 
subject  matter  of  the  charge,  it  cannot  be  rejected  as  surplusage,  and 
the  man  convicted  of  stealing  a  white  horse.  The  color  is  not  essential 
to  the  offence  of  larceny,  but  it  is  made  material  to  fix  the  identity  of 
that  which  the  accused  is  charged  with  stealing.     3  Stark.  1531. 

In  the  case  before  us  the  subject  matter  is  a  pine  log,  marked  in  a 
particular  manner  described.  The  marks  determine  the  identity;  and 
are  therefore  matter  purely  of  description.  It  would  not  be  easy  to 
adduce  a  stronger  case  of  this  character.  It  might  have  been  sufficient 
to  have  stated  that  the  defendant  took  a  log  merely,  in  the  words  of 
the  statute.  But  under  the  charge  of  taking  a  pine  log,  we  are  quite 
clear  that  the  defendant  could  not  be  convicted  of  taking  an  oak  or  a 
birch  log.  The  offence  would  be  the  same  ;  but  the  charge  to  which 
the  party  was  called  to  answer,  and  which  it  was  incumbent  on  him  to 
meet,  is  for  taking  a  log  of  an  entirely  different  description.  The  kind 
of  timber,  and  the  artificial  marks  by  which  it  was  distinguished,  are 
descriptive  parts  of  the  subject  matter  of  the  charge,  which  cannot  be 
disregarded,  although  they  may  have  been  unnecessarily  introduced. 
The  log  proved  to  have  been  taken  was  a  different  one  from  that 
charged  in  the  indictment ;  and  the  defendant  could  be  legally  called 
upon  to  answer  only  for  taking  the  log  there  described.  In  our  judg- 
ment, therefore,  the  jury  were  erroneously  instructed  that  the  marks 
might  be  rejected  as  surplusage ;  and  the  exceptions  are  accordingly 
sustained. 


HASKINS   V.   THE  PEOPLE. 
Court  of  Appeals  of  Nevt  York.     1857. 

[Reported  1 6  N.  Y.  344.] 

Writ  of  error  to  review  a  judgment  of  the  Supreme  Court,  affirm- 
ing, on  error  to  that  court,  a  judgment  of  the  Oyer  and  Terminer  of 
Onondaga  County. 

The  prisoner  was  indicted,  with  four  other  persons,  for  grand  larceny, 

1  Arguments  of  counsel  are  omitted. 


SECT.    III.]  HASKINS    V.   THE    PEOPLE.  939 

the  property  alleged  to  have  been  stolen  being  money  and  bank  notes, 
the  property  of  David  J.  Shaw.  It  was  described  in  the  indictment  as 
"two  promissory  notes  for  the  payment  of  money,  commonly  called 
banTTuotes,  of  the  Stonington  Bank,  current  money  of  the  State  of  New 
Y?Jrri,each  of  the  value  of  fifty  dollars  ;  bank  bills  of  banks  to  the 
jurors  unknown,  and  of  a  number  and  denomination  to  the  jurors  un- 
known, of  the  value  of  six  hundred  dollars ;  silver  coin,  current 
money  of  the  State  of  New  York,  of  a  denomination  to  the  jurors 
unknown,  of  the  value  of  fifty  dollars ;  gold  coin,  current  money  of 
the  State  of  New  York,  of  a  denomination  to  the  jurors  unknown, 
of  the  value  of  fifty  dollars." 

The  plaintiff  in  error  was  tried  separately  in  the  Oyer  and  Terminer, 
in  June,  1857.  Shaw,  the  owner  of  the  money  alleged  to  have  been 
stolen,  resided  at  Summer  Hill,  Cayuga  county.  His  iron  safe,  which 
was  kept  in  a  wing  in  his  house,  rejnote  from  the  apartment  in  which 
he  slept,  was  forced  open  during  the  night  of  the  27th  of  October,  1855, 
and  the  contents,  about  $fiOO  in  money  and  some  papers,  were  taken 
away.  Shaw  swore  that  there  were  among  the  money  at  least  two  fifty- 
dollar  bills  of  the  Stoniugton  Bank ;  that  the  residue  of  the  money  was 
in  current  bank  bills,  and  gold  and  some  silver  coins.  Upon  the 
examination  of  Shaw  he  was  asked  by  the  prosecution  to  state  the 
amount  and  kind  of  bills  and  of  gold  and  silver  coin.  The  prisoner's 
counsel  objected  to  the  inquiry  on  account  of  the  generality  of  the 
description  in  the  indictment.  The  objection  was  overruled  and  the 
prisoner's  counsel  excepted.  The  witness  described  the  different  kinds 
of  money  as  well  as  he  was  able.^ 

Denio,  C.  J.  The  indictment  was  sufficient.  When  the  substance  of 
the  offence  is  set  out,  the  jurors  may  omit  a  matter  of  description  which 
they  cannot  ascertain.  The  People  v.  Taylor,  3  Denio,  91,  and  cases 
cited.  If  this  were  not  so  there  would  often  be  a  failure  of  justice. 
In  the  case  of  the  stealing  of  a  considerable  parcel  of  bank  notes  or  a 
quantity  of  coin,  it  would  frequently,  and  perhaps  generally,  happen 
that  the  owner  would  not  be  able  to  specify  the  different  kinds  of  notes 
or  the  various  species  of  coin.  The  description  of  them  as  bank  notes, 
and  as  gold  or  silver  coin,  together  with  a  statement  of  the  ownership, 
with  an  averment  that  a  more  particular  description  cannot  be  given, 
sufficiently  identifies  the  offence  to  guard  the  prisoner  against  the 
danger  of  another  prosecution  for  the  same  crime.  But  this  indictment 
would  be  sufficient  without  any  aid  from  this  rule.  Two  of  the  notes 
which  the  defendant  stole,  which  were  of  an  amount  sufficient  to  consti- 
tute grand  larceny,  were  described  with  particularity ;  and  if  it  should 
be  granted  that  the  other  bills  and  the  coin  were  not  sufficiently  de- 
scribed, still  they  could  be  spoken  of  in  the  testimony  among  the  cir- 
cumstances attending  the  offence,  though  the  conviction  could  only  be 
had  as  to  the  property  of  which  there  was  a  sufficient  description.  The 
exception  upon  this  point  was  not  well  taken. 

1  Part  of  the  case,  not  relatiug  to  the  question  of  pleading,  is  omitted. 


040  COMMONWEALTH  V.    STONE.  [CHAP.  XV. 


COMMONWEALTH  v.  STONE. 

Supreme  Judicial  Court  of  Massachusetts.     1890. 

[Reported  152  Mass.  498.] 

Indictmekt  alleging  that  the  defendant,  at  a  hearing  in  the  Probate 
Court  holden  at  Worcester  in  the  county  of  Worcester  in  this  Common- 
wealth, procured  "Laura  A.  Fairbanks  of  Worcester  in  said  county 
of  Worcester  "  to  commit  perjury.  At  the  trial  in  the  Superior  Court, 
before  Aldrich,  J.,  one  Laura  A.  Fairbanks,  who  was  admitted  to  be 
the  person  described  in  the  indictment  as  of  Worcester  in  this  Com- 
monwealth, testified,  without  contradiction,  that  at  the  time  she  testi- 
fied in  the  Probate  Court  her  residence  was  in  Brookline  in  the  State 
of  New  Hampshire,  and  has  been  there  since.  The  judge  declined  to 
rule,  as  requested  by  the  defendant,  that  "  there  is  a  variance  between 
the  evidence  and  the  allegations  of  the  indictment  in  this,  that  the 
indictment  alleges  perjury  by  Laura  A.  Fairbanks  of  Woi-cester,  in  the 
county  of  Worcester  in  the  Commonwealth  of  Massachusetts,  and 
the  evidence  tends  to  prove  perjury  only  by  Laura  A.  Fairbanks,  of 
Brookline,  New  Hampshire." 

The  jury  returned  a  verdict  of  guilty;  and  the  defendant  alleged 
exceptions. 

Devens,  J.  The  gist  of  the  charge  in  the  indictment  is,  that  the  de- 
fendant procured  Laura  A.  Fairbanks  to  commit  perjury  in  the  trial 
therein  described.  The  Laura  A.  Fairbanks  who  testified  in  the  Supe- 
rior Court,  it  was  admitted,  was  the  same  person  who  had  testified  in 
the  Probate  Court  where  the  perjury  was  alleged  to  have  been  com- 
mitted, nor  did  it  appear  whether  there  was  any  person  of  the  same 
name  who  was  a  resident  of  Worcester.  The  indictment  described  the 
Laura  A.  Fairbanks  whom  the  defendant  was  charged  with  suborning 
as  "of  Worcester  in  said  county  of  Worcester"  in  this  Commonwealth. 
This  was  an  allegation  that  she  was  a  resident  of  Worcester,  and  the 
uncontradicted  evidence  was  that  the  person  who  had  testified  in  the 
Probate  Court,  and  also  in  the  Superior  Court,  was  at  the  time  and 
since  a  resident  of  New  Hampshire. 

It  has  been  held  that  where  a  person  necessarily  mentioned  in  an 
indictment  is  erroneously  described  as  George  E.  Allen  instead  of 
George  Allen,  or  Nathan  S.  Hoard  instead  of  Nathan  Hoard,  or  the 
Boston  and  Worcester  Railroad  Company  instead  of  the  Boston  and 
Worcester  Railroad  Corporation,  the  variance  is  fatal,  unless  it  shall  be 
shown  that  the  person  so  named  is  known  by  the  one  name  as  well  as  the 
other,  as  the  correct  description  of  such  person  is  necessary  to  identify 
the  offence.  Commonwealth  v.  Shearman,  11  Cush.  546;  Common- 
wealths. Pope,  12  Cush.  272;  Commonwealth  v.  McAvoy,  16  Gray, 
235.  Where  a  person  or  thing  necessary  to  be  mentioned  in  an  indict- 
ment is  described  with  unnecessary  particularity,  the  circumstances  of 


SECT.  IV.]  CASTRO  V.    THE  QUEEN.  941 

the  description  are  to  be  proved,  as  they  are  made  essential  to  its  iden- 
tity. Thus,  in  an  indictment  for  stealing  a  horse,  its  color  need  not  be 
mentioned;  but  if  it  is  stated,  it  is  made  descriptive  of  the  animal, 
and  a  variance  in  the  proof  of  its  color  is  fatal.  1  Greenl.  Ev.  §  65  ; 
3  Stark.  Ev.  (4th  Am.  ed.)  1530  ;.  Commonwealth  v.  Wellington,?  Allen, 
299 ;   State  v.  Noble,  15  Maine,  476  ;  Rex  v.  Craven,  Russ.  &  Ry.  14. 

Where  circumstances  are  not  descriptive  of  the  crime,  a  discrepancy 
between  them  as  alleged  and  as  proved  is  not  important,  but  in  the  case 
at  bar  the  description  of  the  person  whom  the  defendant  was  charged 
with  suborning  was  essential  to  this  identity.  While  it  was  not  neces- 
sary to  have  described  this  person  by  her  residence,  when  this  allega- 
tion was  introduced  it  was  to  be  proved,  as  it  was  this  person  whom 
the  defendant  was  charged  with  suborning.  In  an  action  for  malicious 
prosecution  of  the  plaintiff  upon  a  charge  of  felony,  before  Baron 
Waterpark  of  Waterfork,  a  magistrate  of  the  kingdom  of  Ireland,  it 
was  held  that  proof  of  a  prosecution  before  Baron  Waterpark  of 
Waterpark  was  a  fatal  variance.  Walters  u.  Mace,  2  B.  &  Aid.  756. 
If,  therefore,  Fairbanks  was  not  a  resident  of  Worcester,  but  of  New 
Hampshire,  the  defendant  was  entitled  to  a  ruling  that  there  was  a 
variance  between  the  allegation  of  the  indictment  and  the  proof. 

The  Pub.  Sts.  c.  213,  §  16,  provide  that  certain  defects  of  form,  as 
by  reason  of  the  omission  or  misstatement  of  the  degree,  occupation, 
&c.,  of  the  defendant,  or  of  his  place  of  residence,  shall  not  vitiate  the 
indictment,  but  it  has  made  no  such  provision  in  regard  to  others  neces- 
sarily mentioned  therein.  In  general,  it  may  be  said  that  a  misnomer, 
or  other  misdescription  of  a  defendant,  has  always  been  deemed  of  less 
importance  than  that  of  one  necessarily  mentioned  in  the  description  of 
the  offence,  as  the  defendant  may  plead  in  abatement  if  he  deems  the 
matter  of  sufficient  importance.  The  Pub.  Sts.  c.  205,  §§  5,  6,  also, 
which  prescribe  or  rather  modify  the  common  law  form  of  the  indict- 
ment for  perjury,  and  subornation  of  perjury,  do  not  suggest  that  there 
is  to  be  any  further  latitude  in  the  description  of  the  person  whose 
testimony  has  been  alleged  to  be  suborned  than  that  which  has  hereto- 
fore been  permitted.  Exceptions  sustained. 


SECTION  IV. 

Counts. 


CASTRO,  alias  ORTON,  alias  TICHBORNE  v.  THE  QUEEN. 

House  of  Lords.     1881. 
[Reported  6  App.Cas.  229.] 
This  was  an  appeal  against  a -decision  of  the  Court  of  Appeal,  which 
had  affirmed  a  judgment  of  the  Queen's  Bench  Division.     Law  Rep- 
9  Q.  B.  350 ;  5  Q.  B.  D.  490. 


942  CASTRO    V.    THE    QUEEN.  [CHAP.  XV. 

On  the  8th  of  April,  1872,  the  grand  jury  at  the  Central  Criminal 
Court  found  a  true  bill  against  Thomas  Castro,  alias  Arthur  Orton, 
alias  Sir  R.  C.  D.  Tichborne,  Bart,  for  perjury.  The  indictment  con- 
tained two  counts.  The  iirst  count  charged  that  on  the  10th  of  May, 
1871,  at  Westminster,  before  Sir  W.  Bovill,  Lord  Chief  Justice  of  the 
Common  Pleas,  an  issue,  duly  joined  in  an  action  of  ejectment,  came 
on  to  be  tried,  in  which  the  appellant  was  the  claimant,  and  Franklin 
Lushington  and  others  were  defendants,  that  the  appellant  appeared  as 
a  witness  for  himself  and  was  duly  sworn,  and  gave  answers  in  several 
matters  (which  were  particularly  set  forth),  and  that  the  appellant  on 
his  oath  falsely  answered  in  these  matters,  and  so  committed  the  offence 
of  perjury  against  the  peace  of  our  lady  the  Queen,  her  crown  and 
dignity. 

The  second  count  charged  that,  on  the  7th  of  April,  1868,  a  suit  had 
been  instituted  in  Chancery,  in  which  the  appellant  was  the  plaintiff, 
and  the  Hon.  Teresa  Tichborne,  widow,  and  others  were  the  defendants, 
praying  that  in  case  it  might  be  deemed  requisite  for  him  to  take 
proceedings  at  law  for  the  recovery  of  the  Tichborne  estates,  the 
defendants  might  be  restrained  by  injunction  from  setting  up  certain 
outstanding  terms,  &c.,  therein  mentioned,  and  that  on  the  said  7th  of 
April,  1868,  the  defendant  made  an  affidavit  in  support  of  his  motion 
in  the  said  suit,  and  therein  made  certain  false  statements  (which  were 
fully  set  forth  in  the  count),  and  did  thereby  commit  perjury  against  the 
peace,  &c.,  as  before. 

The  appellant  pleaded  not  guilty.  The  indictment  was  removed  into 
the  Queen's  Bench.  The  trial,  which  began  on  the  23d  of  April,  1873, 
and  terminated  on  the  28th  of  February,  1874,  took  place  before  Lord 
Chief  Justice  Cockburn.  The  verdict  was  in  the  following  form  :  "The 
jurors  so  empannelled,  &c.,  on  their  oath  say  that  the  said  Thomas 
Castro,  otherwise  called,  &c.,  is  guilty  of  the  premises  on  him  above 
charged  in  and  by  both  counts  of  the  indictment  aforesaid  above  speci- 
fied, in  the  manner  and  form  aforesaid,  as  by  the  indictment  aforesaid 
is  above  supposed  against  him."  The  judgment  that  followed  was, 
"  That  the  said  Thomas  Castro,  otherwise,  &c.,  for  the  offence  charged 
in  and  by  the  first  count  of  the  said  indictment,  be  kept  in  penal  servi- 
tude for  the  term  of  seven  years  now  next  ensuing.  And  that  for  and 
in  respect  of  the  offence  charged  in  and  by  the  second  count  of  the  said 
indictment,  he,  the  said  Thomas  Castro,  otherwise,  &c.,  be  kept  in  penal 
servitude  for  the  farther  term  of  seven  years  to  commence  immediately 
upon  the  expiration  of  his  said  term  of  penal  servitude  for  his  offence 
in  the  first  count  of  the  said  indictment." 

On  the  13th  of  December,  1879,  Sir  John  Holker,  Her  Majesty's  then 
Attorney-General,  granted  his  fiat  for  a  writ  of  error,  which  was  after- 
wards issued,  and  the  case  was  argued  in  the  Court  of  Appeal,  when 
judgment  was  given  for  the  Crown.  5  Q.  B.  D.  490.  This  appeal  was 
then  brought. 


SECT.    IV.]  CASTRO   V.   THE   QUEEN.  943 

Lord  Blackburn.*  My  Lords,  notwithstanding  the  very  consider- 
able time  which  has  been  occupied  iu  the  argument,  I  have  never  been 
able  from  the  beginning  to  the  end  to  entertain  the  least  doubt  that  in 
this  case  the  judgment  ought  to  be  affirmed. 

I  must  say  at  once  I  totally  disagree  with  what  has  been  repeatedly 
asserted  by  both  the  learned  counsel  at  the  bar.  I  totally  disagree  that 
the  pleadings  at  common  law  in  a  criminal  case  and  a  civil  case  were 
in  the  slightest  degree  different.  I  am  speaking  of  course  of  the  time 
before  the  Judicature  Acts  passed  which  swept  them  all  away.  Many 
enactments  had  from  time  to  time  been  passed,  relieving  the  strictness 
of  pleadings  in  civil  cases,  which  did  not  relieve  them  in  criminal  cases  ; 
but  the  rules  of  pleading  at  common  law  were  exactly  the  same  in  each 
case.  The  course  taken  with  regard  to  an  indictment  was  this :  The 
Queen  having  sent  her  commission  to  the  grand  jury,  or  any  other  com- 
mission to  a  proper  tribunal,  the  tribunals  so  authorized  presented  all 
the  offences  that  came  to  their  knowledge ;  if  it  was  brought  sufficiently 
to  their  knowledge  that  a  man  had  committed  ten  murders,  fifty  bur- 
glaries, and  a  score  of  larcenies,  they  would  find,  not  one  finding  as  to 
them  all,  but  they  would  find  in  separate  counts  that  he  had  committed 
each  of  those  charged  offences ;  and  if  there  were  many  other  persons 
(as  generally  there  are)  it  would  also  be  found  that  those  other  persons 
had  committed  the  offences  proved  against  them  also,  and  of  this  pre- 
sentment one  record  was  made  up.  Upon  that,  process  could  be  issued 
against  a  man  so  charged,  to  bring  bira  upon  his  trial  before  a  petty 
jury,  to  try  whether  he  was  guilty  of  those  offences  so  charged  or  not. 

Now,  at  common  law  there  was  no  objection  whatever,  in  point  of 
law,  to  bringing  a  man  who  was  charged  with  several  offences,  if  those 
charges  were  all  felonies,  or  were  all  misdemeanors,  before  one  petty 
jury,  and  making  him  answer  for  the  whole  at  one  time.  The  chal- 
lenges and  the  incidents  of  trial  are  not  the  same  in  felony  and  in  mis- 
demeanor,~and  therefore  felony  and  misdemeanor  could  not  be  tried 
together ;  but  any  number  of  felonies  and  any  number  of  misdemeanors 
might.^    The  contrary  was  asserted  by  the  learned  counsel,  but,  though 

1  The  concurring  opinions  of  the  Lord  Chancellor  and  Lord  Watson,  and  part  of 
Lord  Blackburn's  opinion,  are  omitted. 

2  "  It  was  a  principle  of  the  English  law,  and  the  rule  has  been  adopted  in  some  of 
our  States,  that  there  can  be  no  conviction  for  a  misdemeanor  upon  an  indictment  for 
a  felony,  even  where  the  allegations  of  the  indictment  include  such  misdemeanor.  The 
reason  for  the  rule  was,  that  persons  charged  with  misdemeanors  had  certain  advan- 
tages at  their  trials  which  were  not  allowed  to  those  arraigned  for  felony,  and  it  was 
deemed  unjust  to  suffer  the  too  heavy  allegation  to  take  from  them  these  privileges. 
But  the  practice  of  withholding  any  substantial  privilege  from  a  person  indicted  for 
felony,  which  is  allowed  to  one  indicted  for  misdemeanor,  does  not  obtain  in  this 
country,  and  therefore,  in  many  of  the  States  it  is  the  practice  to  permit  convictions 
for  misdemeanor  on  indictments  for  felony,  where  the  latter  includes  the  former. 
1  Bishop  on  Crim.  Law  (5th  ed.)  sees.  804,  805.  ...  In  the  late  case  of  State  v.  Stewart 
et  ah,  59  Vt.  273,  it  is  said  :  '  Although  authorities  can  be  found  that  lay  down  the  rule 
that  felonies  and  misdemeanors,  or  different  felonies,  can  not  be  joined  in  the  same 
indictment,  still  the  rule  in  this  and  most  of  the  States  is  otherwise.     It  is  always  and 


944  CASTRO    v.    THE    QUEEN.  [CHAP.  XV. 

repeatedly  challenged  to  do  so,  he  did  not  cite  any  authority  in  support 
of  his  contention.  There  was  no  legal  objection  to  doing  this;  it  was 
frequently  not  fair  to  do  it,  because  it  might  embarrass  a  man  in  tlie 
trial  if  he  was  accused  of  several  things  at  once,  and  frequently  the 
mere  fact  of  accusing  him  of  several  things  was  supposed  to  tend  to 
increase  the  probability  of  his  being  found  guilty,  as  it  amounted  to 
giving  evidence  of  bad  character  against  him.  Whenever  it  would  be 
unfair  to  a  man  to  bring  him  to  trial  for  several  things  at  once,  an  appli- 
cation might  be  made  to  the  discretion  of  the  presiding  judge  to  say, 
"  Try  me  only  for  one  offence,  or,  try  me  only  for  two  offences ;  if  one 
was  the  real  thing  let  me  be  tried  for  one  and  one  only,"  and  wherever 
it  was  right  that  that  should  be  done  the  judge  would  permit  it.  For 
these  mixed  motives  it  was  well  established  by  a  long  series  of  decisions 
(I  confess  I  doubt  whether  they  were  right  at  first,  but  certainly  they 
have  been  both  well  established  now  and  sanctioned  by  statute  —  that 
is  quite  clear)  that  where  the  several  charges  were  of  the  nature  of 
felony,  the  joining  of  two  felonies  in  one  count  was  so,  necessarily,  I 
may  say,  unfair  to  the  prisoner  that  the  judge  ought,  upon  an  applica- 
tion being  made  to  him,  to  put  the  prosecutor  to  his  election  and  send 
them  to  two  trials.  Jjijiejf.er-was.  decided,  even  in  felony,  that,  if  that 
application  for  the  election  was  not  made,  the  joining  of  several  fel- 
onies, that  is  to  say,  the  taking  several  felonies  which  had  been  found 
together,  and  trying  those  several  felonies  before  one  petty  jury,  was 
wrong  in  point  of  law ;  on  the  contrary,  it  was  repeatedly  held  that  it 
was  right  enough,  although,  if  the  proper  application  had  been  made  at 
the  proper  time,  in  a  case  of  felony,  the  party  prosecuting  would  have 
been  put  to  his  election  or  made  to  take  one  felony  only,  and  not  both 
at  the  same  time.  But  in  cases  of  misdemeanor  it  was  by  no  means  a 
matter  of  course  that  that  should  be  done.  I  think  that  if  the  judge, 
upon  an  application  made  to  him,  had  been  satisfied  that  to  try  the  man 
for  several  misdemeanors  together  would  work  injustice  to  the  prisoner, 
he  had  a  perfect  right  to  say,  "  I  will  not  work  this  injustice  by  trying 
them  together,  let  us  diminish  them  in  number  and  try  a  reasonable 
number  and  no  more."  I  do  not  know  whether  that  was  ever  done 
in  a  case  of  misdemeanor,  but  I  feel  very  little  doubt  that  it  may  have 
been. 

I  think  that  in  such  a  case  as  the  American  case,  Tweed  v.  Lis- 
comb,  15  Sickel's  New  York  Ap.  Cas.  559,  which  was  cited,  where  a 
man  was  called  upon  to  answer  before  one  jury  at  one  time  for  two 

everywhere  permissible  for  the  pleader  to  set  forth  the  offence  he  seeks  to  prosecute, 
in  all  the  various  ways  necessary  to  meet  the  possible  phases  of  evidence  that  may 
appear  at  the  trial.  If  the  counts  cover  the  same  transaction,  though  involving 
offences  of  different  grades,  the  court  has  it  in  its  power  to  preserve  all  rights  of 
defence  intact.'  See  also  Sterick  v.  Commonwealth,  78  Pa.  St.  460;  Hunter  v.  Com- 
monwealth, 79  id.  503  ;  Hutchinson  v.  Commonwealth,  82  id.  472 ;  Hawker  v.  The 
People,  75  N.  Y.  487 ;  Crosby  v.  Commonwealth,  11  Mete.  575 ;  State  v.  Hood,  51  Me. 
363;  Commonwealth  v.  McLaughlin,  12  Cush.  612;  State  v.  Lincoln,  49  N.  H-  464." 
Baker,  J.,  in  Herman  v.  The  People,  131  111.  594,  598.  —  Ed. 


SECT.    IV.]  CASTRO    V.    THE    QUEEN.  945 

hundred  offences,  the  man  might  not  unreasonably  have  said,  "  That 
is  too  much  to  put  a  man  upon  his  trial  for ;  select  five  or  six,  try  me 
on  those,  let  the  rest  stand  over."  I  do  not  see  that  that  would  be  at 
all  an  unreasonable  application.  And  in  the  present  case,  if  an  appli- 
cation had  been  made  to  the  Court  of  Queen's  Bench  to  put  the  party  to 
his  election,  and  if  it  had  been  said  "  1  cannot  be  fairly  tried  for  one 
offence  of  perjury  committed  in  Middlesex,  if  at  the  same  time  I  am  to 
Jb(e  tried  for  another  perjury  committed^in  London,  therefore  there  must 
be  two  separate  trials;"  if  such  an  application  had  been  made  the 
judges  of  the  Queen's  Bench  would  doubtless  have  said,  "We  will  listen 
to  the  arguments  that  may  be  urged  in  its  favor.  What  they  could 
possibly  have  been  I  do  not  know,  but  no  such  application  was  made. 
The  prisoner  was  tried  upon  the  two  counts  before  one  petty  jury.  They 
were  taken  both  together,  and  then  the  result  was  that  he  was  found 
guilty  upon  both. 

Something  was  attempted  to  be  argued  upon  the  wording  here,  namely, 
that  he  was  found  ''  guilty  of  the  premises  "  in  both  counts,  to  the  effect 
that  that  did  not  mean  the  premises  charged  in  each  of  the  counts,  but 
meant  only  (if  I  understand  the  argument  rightly)  such  premises  as 
were  charged  not  only  in  the  one  but  also  in  the  other.  In  the  first 
place,  that  is  not  the  meaning  of  the  words ;  and,  secondly,  it  would 
be  utterly  absurd,  because  the  one  count  related  to  things  which  happened 
in  Middlesex,  and  the  other  related  entirely  to  things  which  happened 
in  London  three  years  before ;  therefore  there  could  be  nothing  identi- 
cal in  the  two. 

But  he  was  found  guilty,  and  then  came  the  question  what  was  to  be 
the  sentence.  It  is  clear  that  if  the  court  had  pleased  to  grant  an  ap- 
plication these  two  counts  might  have  been  tried,  the  one  in  London 
before  a  London  jury,  and  the  other  in  Middlesex  before  a  Middlesex 
jury;  but  for  the  act  relating  to  the  Central  Criminal  Court,  which 
gives  that  court  jurisdiction  over  both  Loudon  and  Middlesex,  they 
must  have  been  so  tried.  But  even  now  they  might  have  been  so  tried, 
and  if  they  had  been  so  tried,  and  if  each  jury  had  found  a  verdict  of 
guilty  on  the  counts  brought  before  it  separately,  Rex  v.  Wilkes,  4  Burr. 
2527 ;  19  How.  St.  Tr.  1075  ;  4  Bro.  P.  C.  360,  would  have  been  abso- 
lutely in  point  as  to  the  sentence.  There  would  not  have  been  a  pretext 
for  saying  there  was  the  least  difference. 

But  then  it  is  put  in  the  argument  in  this  way,  that  when  they  are 
both  tried  before  one  jury,  and  when  the  prosecutor  has  not  been  put 
to  his  election,  but  the  trial  for  both  offences  has  taken  place  together, 
the  consequence  must  be  that  the  prisoner  is  not  to  be  punished  in  the 
same  way  as  he  would  have  been  if  he  had  been  tried  for  each  before 
two  separate  judges,  and  he  is  therefore  entitled  to  get  off  with  less 
punishment.  Why?  I  am  sure  I  cannot  conceive,  nor  can  I  see  that 
any  authority  has  been  cited  for  that,  at  any  rate  in  the  English  law, 
nor  does  it  proceed  on  any  reason.  In  regard  to  the  American  case, 
The  People  ex  rel.  Tweed  v.  Liscomb,  15  Sickel's  New  York  Ap.  Cas. 


946  CASTRO    V.    THE    QUEEN.  [CHAP.  XV. 

559,  which  was  cited,  it  might  be  enough  to  say  that  I  observe  that 
the  American  case  proceeds  upon  the  express  ground  that  the  court 
was  acting  upon  New  York  decisions,  subsequent  to  the  Declaration 
of  Independence,  and  upon  New  York  statutes,  and  not  upon  English 
rules  or  English  law.  I  dare  say  that  decision  may  be  right  accord- 
ing to  those  New  York  decisions  and  statutes,  but  the  decision  does 
not  apply  here.  They  say  that  according  to  their  view  of  the  New  York 
statutes  and  the  New  York  decisions,  where  there  is  but  one  trial  before 
one  jury,  it  must  be  for  one  offence,  and  for  one  offence  only,  and  upon 
that  they  all  rest.  They,  logically  enough,  say,  if  that  is  granted  where 
there  are  sentences  passed  for  more  than  one  offence,  all  but  one  must 
be  idtra  vires  ;  accordingly  they  held  that  the  power  of  passing  a  sen- 
tence was  exhausted  by  the  first  sentence.  I  leave  it  to  the  American 
judges  to  say  whether  that  was  right  or  not  according  to  American  law. 
I  do  not  pretend  to  express  an  opinion  on  that,  but  I  am  quite  clear 
that  it  is  not  English  law.  I  think  the  English  decisions  are  all  the 
other  way,  and  the  reason  of  the  case  is,  to  my  mind,  quite  clearly  the 
other  way. 

Now  I  will  mention  but  one  or  two  cases  which  prove  it.  I  will  not 
quote  them  at  length.  The  first  is  Young  v.  The  King,  3  T.  R.  98, 
where  the  law  is  laid  down  in  the  way  I  have  stated,  that  it  is  not  a 
matter  of  right  and  law  that  they  shall  not  be  tried  together,  but  only 
a  matter  of  election.  Then  comes  Rex  v.  Jones,  2  Camp.  131,  where 
Lord  EUeuborough  both  laid  down  the  law  as  I  have  stated  it,  and 
acted  upon  it.  Then  Rex  v.  Kingston,  8  East,  41,  where  Lord  Ellen- 
borough  again  repeats  the  doctrine ;  and  lastly,  Rex  v.  Robinson,  1 
Moo.  C.  C.  413,  which  has  been  already  cited,  where  it  was  said  that 
the  doctrine  of  Rex  v.  Wilkes,  4  Burr.  2527 ;  19  How.  St.  Tr.  1075 ; 
4  Bro.  P.  C.  360,  ought  to  have  been  applied  to  a  case  where  there  were 
two  misdemeanors  in  separate  counts  tried  together  before  one  jury. 
My  Lords,  taking  all  those  cases  together,  I  myself  can  feel  no  doubt 
at  all  that,  by  the  English  law,  and  going  by  that  alone,  there  is  not  a 
pretence  for  this  writ  of  error. 

Judginent  appealed  from  affirmed,  and  appeal  dismissed.^ 

1  "  I  have  examined  with  some  care  the  cases  in  the  courts  of  this  State  and  of 
England  to  which  we  have  been  referred,  or  which  have  come  under  my  observation, 
and  I  find  no  authority  for  hokling  that  the  common  law,  as  it  existed  in  England  iu 
April,  1775,  or  as  it  exists  and  is  administered  in  this  State  at  this  time,  permits  cumu- 
lative sentences  to  be  imposed  upon  conviction  for  several  distinct  misdemeanors, 
charged  in  different  counts  in  a  single  indictment,  in  the  aggregate  exceeding  the 
punishment  prescribed  by  law  as  the  extreme  limit  of  punishment  for  a  single  mis- 
demeanor. I  do  not  regret  this.  A  proper  administration  of  the  criminal  law,  as 
well  in  the  public  interest  as  for  the  protection  of  those  accused  of  crime,  requires  a 
different  rule.  The  power  of  the  court  was  exhausted  by  one  sentence  to  imprison- 
ment for  one  year,  and  the  payment  of  a  fine  of  $250  ;  or  if  several  judgments  can  be 
pronounced  by  a  sentence,  the  same  in  the  aggregate,  distributing  such  punishment 
and  apportioning  it  to  the  convictions  upon  the  several  counts,  according  to  the  de- 
merits of  the  offences  charged  in  each  ;  each  and  every  of  the  judgments  and  sentences, 
in  excess  of  that  limit,  was  coram  nonjudice.     A  judgment  in  the  form  and  to  the 


SECT.   IV.]  COMMONWEALTH   V.    TUCK.  947 


COMMONWEALTH   i\   TUCK. 
Supreme  Judicial  Court  of  Massachusetts.     1838. 

[Reported  20  Pick.  356.] 

Morton,  J./  delivered  the  opinion  of  the  court.  Several  objections 
have  been  made  against  the  indictment  and  urged  with  ingenuity 
and  force.  Although  they  may  be  inconsistent  with  each  other,  yet 
their  inconsistency  is  no  fatal  infirmity,  and  if  either  of  them  is  well 
founded  and  incurable,  it  must  prevail.  Some  of  them  deserve  serious 
consideration. 

The  first  objection  is  duplicity.  It  is  argued  that  the  indictment  in 
one  count  charges  two  distinct  substantive  offences,  shop-breaking  and 
larceny.  This  objection  assumes  that  both  crimes  are  well  charged. 
Two  questions  arise  upon  this  point:  is  the  indictment  double?  and 
if  so,  is  the  objection  seasonably  taken? 

The  general  rule,  unquestionably,  is  that  two  or  more  crimes  cannot 
be  joined  in  the  same  count  of  an  indictment.  Archb.  Crim.  PI.  25. 
This  rule,  which  is  not  only  convenient  in  practice,  but  essential  to  the 
rights  of  the  accused  and  important  to  the  due  administration  of  crimi- 
nal law,  should  not  be  disregarded.  But  it  has  exceptions.  Where 
two  crimes  are  of  the  same  nature  and  necessarily  so  connected  that 
they  mcn/^.aiid  when  both  are  committed  must  constitute  but  one  legal 
offence,  they  should  be  included  in  one  charge.  Familiar  examples  of 
these  are,  assault  and  battery,  and  burglary.  An  indictment  for  the 
latter  is  similar  to  the  one  before  us.  1  Stark.  Crim.  PI.  (2d  ed.)  39. 
An  assault  and  battery  is  really  but  one  crime.  The  latter  includes  the 
former.  A  person  may  be  convicted  of  the  former  and  acquitted  of  the 
latter,  but  not  ince  versa.  They  must  therefore  be  charged  as  one 
offence.  Bui.  N.  P.  15.  So  in  burglary,  where  the  indictment  charges 
a  breaking  and  entry  with  an  intent  to  steal  and  an  actual  stealing 
(which  is  the  common  form),  the  jury  may  acquit  of  the  burglary  and 
convict  of  the  larceny,  but  cannot  convict  of  the  burglary  and  larceny 
as  two  distinct  offences.  The  latter  is  merged  in  the  former,  and  they 
constitute  but  one  offence.     Rex  v.  Withal,  1  Leach,  102. 

It  is  difficult  to  distinguish  the  case  at  bar  from  burglary.     An  in- 

extent  allowed  by  law  once  pronounced,  the  power  of  the  court  became  yM^c^MS  officio 
in  respect  to  that  prosecution  and  the  indictment,  except  to  see  that  the  judgment  was 
executed.  There  was  no  longer  any  record  of  verdict  upon  which  the  court  covild  act- 
The  jurisdiction  over  the  person  of  the  condemned  was  exhausted,  and  as  if  uo  prose" 
cution  had  ever  been  instituted  against  him.  The  purposes  of  the  prosecution  and  of 
the  indictment  had  been  accomplished  if  the  punishment  for  the  offence  is  fixed  by 
Statute,  a  judgment  in  excess  of  the  statutory  limit  is  void  for  the  excess,  as  we  have 
seen  by  adjudged  cases."  —  Allen,  J.,  in  People  ex  rel.  Tweed  v.  Liscomb,  60  N.  Y.  559, 
590. 

1  The  opinion  alone  is  given,  and  part  of  it,  not  relating  to  the  question  of  pleading, 
..s  omitted 


948  COMMONWEALTH   V.   FITCHBURO    RAILROAD.        [CHAP.  XV. 

flic?tmeut  setting  forth  that  the  defendant  broke  and  entered  the  shop 
with  intent  to  steal,  would  be  good.  Can  the  addition  of  the  fact  that 
he  did  steal,  which  is  the  best  evidence  of  his  intention,  vitiate  the  in- 
dictment? We  cannot  perceive  that  it  does.  It  is  true  the  main 
charge  might  be  established  without  proof  of  the  larceny,  and  the  lar- 
ceny might  be  established  without  proof  of  the  breaking  and  entry; 
but  wherein  does  this  differ  from  burglary?  The  principles  governing 
both  seem  to  be  the  same. 

But  even  if  duplicity  existed  in  this  indictment,  it  may  well  be 
doubted  whether  the  objection  does  not  come  too  late.  In  civil  actions 
duplicity  is  cured  by  general  demurrer  or  by  pleading  over.  Archb. 
PI.  and  Ev.  96.  And  in  criminal  cases  it  is  extremely  doubtful  whether 
it  can  be  taken  advantage  of  in  arrest  or  error.  Archb.  Crim.  PL  21. 
See  Commonwealth  v.  Eaton,  15  Pick.  273.  Indeed,  we  think  the 
better  opinion  is,  that  it  cannot. 

It  is  true  that  the  statute  of  jeofails  does  not  extend  to  criminal 
prosecutions.  A  defective  indictment  cannot  be  cured  by  verdict.  If 
the  crime  be  not  correctly  described,  no  judgment  can  be  rendered 
either  upon  verdict  or  plea  of  guilty.  2  Hale's  P.  C.  193 ;  Common- 
wealth V.  Morse,  2  Mass.  R.  130 ;  Commonwealth  r.  Hearsey,  1  Mass. 
R.  137. 

But  the  objection  now  under  consideration  is  totally  different.  It  is 
not  that  the  offence  is  defectively  set  forth,  but  that  more  than  one 
offence  is  sufficiently  set  forth  in  the  same  indictment.  The  only  argu- 
ment which  lies  against  the  latter  is,  that  it  subjects  the  defendant  to 
inconvenience  and  danger  by  requiring  him  to  prepare  himself  to  meet 
several  charges  at  the  same  time.  The  appropriate  remedy  would  be  a 
motion  to  the  court  to  quash  the  indictment,  or  to  confine  the  prose- 
cutor to  some  one  of  the  charges.     Archb.  Crim.  PL  3. 


COMMONWEALTH  v.   FITCHBURO  RAILROAD. 
Supreme  Judicial  Court  of  Massachusetts.     1876. 

[Reported  120  Mass.  372.] 

Lord,  J.^  The  indictment  in  this  case  contained  five  counts,  and  as 
appears  by  the  bill  of  exceptions,  all  for  the  same  offence  although  it 
is  not  alleged,  as  sometimes  it  is,  that  the  various  counts  are  different 
modes  of  charging  the  same  offence.  It  has  long  been  the  practice  in 
this  Commonwealth  to  charge  several  misdemeanors  in  different  counts 
of  the  same  indictment,  and  to  enter  verdicts  and  judgments  upon  the 
several  counts,  in  the  same  manner  and  with  the  same  effect  as  if  a 
separate  indictment  had  been  returned  upon  each  charge.     It  has  also 

1  The  opinion  alone  is  given,  and  part  of  it,  not  relating  to  the  question  of  pleading, 
is  omitted. 


SECT.    IV.]  COMMONWEALTH    V.    FITCHBURG   RAILROAD.  94^ 

been  long  established  that  the  same  offence  may  be  charged,  as  com- 
mitted by  different  means  or  in  different  modes,  in  various  distinct 
counts  of  an  indictment,  and  that  a  general  verdict  of  guilty  upon  such 
indictment  and  judgment  thereon  is  a  conviction  of  but  a  single  offence, 
and  is  deemed  to  be  upon  that  count  of  the  indictment  to  which  the 
evidence  is  applicable. 

The  first  count  charges  generally  a  killing  of  the  person  named 
therein  within  the  city  of  Somerville,  by  reason  of  the  gross  negligence 
of  the  servants  of  the  defendant  in  the  management  of  a  locomotive 
engine  then  in  charge  of  said  servants. 

The  second  count  charges  the  killing  to  have  been  by  collision  at  the 
crossing  at  grade  of  a  highway  in  Somerville,  by  reason  of  the  same 
negligence. 

The  third  count  charges  that  the  death  was  caused,  either  by  the 
defendant's  own  neglect  or  the  neglect  of  its  servants,  by  collision  at 
the  crossing  at  grade  of  a  town  way  in  Somerville,  and  that  it  was  by 
reason  of  neglect  of  the  servants  and  agents  in  charge  to  ring  the  bell 
or  sound  the  whistle  upon  approaching  said  crossing  as  required  by 
law. 

It  is  not  necessary  to  refer  to  the  other  counts,  as  there  was  a  verdict 
of  not  guilty  upon  them. 

The  jury  returned  a  verdict  of  guilty  upon  each  of  the  first  three 
counts.  The  court  are  all  of  opinion  that  this  must  be  deemed  to  have 
beeu^a  mistrial.  But  one  offence  was  charged,  and  the  jury  should 
have  been  instructed  to  return  a  general  verdict  of  guilty  or  not  guilty 
upon  tiie  whole  indictment  as  for  a  single  offence,  which  would  have 
been Tn  conformity  with  the  long  and  well  established  practice  in  this 
Commonwealth  ;  or  they  should  have  been  instructed  to  return  a  verdict 
of  guilty  upon  the  count  proved,  if  either  was  proved,  and  not  guilty 
jipon  all  the  others.  As  the  record  now  stands,  the  defendant  corpora- 
tion was  charged  with  five  distinct  misdemeanors,  of  three  of  which  it 
was  found  guilty,  and  of  two  of  which  it  was  found  not  guilty.  The 
bill  of  exceptions,  however,  shows  that  but  one  offence  was  committed, 
and  it  is  suggested  that  a  nolle  jnoseqiii  may  be  entered  as  to  two  of 
the  counts,  and  judgment  upon  the  other.  It  is  obvious  that  inasmuch 
as  the  several  counts  may  be  supported  by  different  evidence,  and  as 
they  are,  at  least  to  some  extent,  inconsistent  with  each  other,  it  is  im- 
possible to  determine  which  was  proved,  it  being  certain  that  all  could 
not  have  been.     The  verdict  must  therefore  be  set  aside. 


950  CLAASEN   V.    UNITED    STATES.  [CHAP.  XV. 


CLAASEN   V.  UNITED   STATES. 
Supreme  Court  of  the  United  States.     1891. 

[Reported  142  U.  i).  140.] 

Gray,  J.^  There  can  be  uo  doubt  of  the  sufficiency  of  the  first  count 
on  which  the  defendant  was  convicted.  It  avers  that  the  defendant  was 
president  of  a  national  banking  association  ;  that  by  virtue  of  his  office 
he  received  and  took  into  his  possession  certain  bonds  (fully  described), 
the  property  of  the  association ;  and  that,  with  intent  to  injure  and  de- 
fraud the  association,  he  embezzled  the  bonds  and  converted  them  to 
his  own  use.  On  principle  and  precedent,  no  further  averment  was 
requisite  to  a  complete  and  suflicient  description  of  the  crime  charged. 
United  States  u  Brittou,  107  U.  S.  655,  669;  The  King  v.  .Johnson, 
3  M.  &  S.  539,  549 ;  Starkie  Crim.  PI.  (2d  ed.)  454 ;  3  Chitty  Grim. 
Law,  981 ;  2  Bishop  Crim.  Pro.  §§  315,  322. 

This  count  and  the  verdict  of  guilty  returned  upon  it  being  sufl3cient 
to  support  the  judgment  and  sentence,  the  question  of  the  sufliciency  of 
the  other  counts  need  not  be  considered. 

In  criminal  cases  the  general  rule,  as  stated  by  Lord  Mansfield  before 
the  Declaration  of  Independence,  is  "  that  if  there  is  any  one  count  to 
support  the  verdict,  it  shall  stand  good,  notwithstanding  all  the  rest  are 
bad."  Peake  v.  Oldham,  Cowper,  275,  276 ;  Rex  v.  Benfield,  2  Bur. 
9807  985.  See  also  Grant  v.  Astle,  2  Doug.  722,  730.  And  it  is  set- 
tled law  in  this  court,  and  in  this  country  generally,  that  in  any  crimi- 
nal case  a  general  verdict  and  judgment  on  an  indictment  or  information 
containing  several  counts  cannot  be  reversed  on  error,  if  any  one  of  the 
counts  is  good  and  warrants  the  judgment,  because,  in  the  absence  of 
anything  in  the  record  to  show  the  contrary,  the  presumption  of  law  is 
that  the  court  awarded  sentence  on  the  good  count  only.  Locke  v.' 
United  States,  7  Cranch,  339,  344;  Clifton  v.  United  States,  4  How. 
242,  250;  Snyder  w.  United  States,  112  U.  S.  216;  Bond  v.  Dustin, 
112  U.  S.  604,  609  ;  1  Bishop  Crim.  Pro.  §  1015;  Wharton  Crim.  PL 
&  Pract.  §  771. 

The  opposing  decision  of  the  House  of  Lords,  in  1844,  in  the  well 
known  case  of  0"Conuell  v.  The  Queen,  was  carried,  as  appears  by  the 
report  in  11  CI.  &  Fin.  155,  by  the  votes  of  Lord  Denman,  Lord  Cot- 
tenham  and  Lord  Campbell  against  the  votes  of  Lord  Lyndhurst  and 
Lord  Brougham,  as  well  as  against  the  opinions  of  a  large  majority  of 
the  judges  consulted,  and  the  universal  understanding  and  practice  of 
the  courts  and  the  profession  in  England  before  that  decision.  It  has 
seldom,  if  ever,  been  foEowed  in  the  United  States. 

In  Commonwealth  v.  Boston  &  Maine  Railroad,  133  Mass.  383,  392, 

1  The  opinion  only  is  given ;  it  states  the  case.  Part  of  the  opinion,  not  relating  to 
the  question  of  pleading,  is  omitted. 


SECT,    v.]         NEW   YORK    CODE    OF    CRIMINAL    PROCEDURE.  951 

and  in  Wood  v.  State,  59  N.  Y.  117,  122,  relied  on  by  the.  plaintiff  in 
error,  the  general  rule  was  not  impugned,  and  judgment  upon  a  general 
verdict  was  reversed  because  of  erroneous  instructions,  duly  excepted 
to  by  the  defendant  at  the  trial,  expressly  authorizing  the  jury  to  con- 
vict upon  an  insufficient  count. 

In  the  case  now  before  us,  the  record  does  not  show  that  any  instruc- 
tions at  the  trial  were  excepted  to,  and  the  jury  did  not  return  a  general 
verdict  against  the  defendant  on  all  the  countS;  but  found  him  guilty  of 
the  offences  charged  in  each  of  the  five  counts  now  in  question.  This 
being  the  case,  and  the  sentence  being  to  imprisonment  for  not  less 
than  five  years  nor  more  than  ten,  which  was  the  only  sentence  author- 
ized for  a  single  offence  under  the  statute  on  which  the  defendant  was 
indicted,  there  is  no  reason  why  that  sentence  should  not  be  applied  to 
any  one  of  the  counts  which  was  good.  ,  ^,   . ;      ' 


? 


/ 


SECTION  V. 


Statutory  Simplifications  of  Criminal  Pleading. 

NEW  YORK   CODE  OF  CRIMINAL  PROCEDURE. 

§  284.    The  indictment  is  sufficient,  if  it  can  be  understood  therefrom : 

1.  That  it  is  entitled  in  a  court  having  authority  to  receive  it,  though 
the  name  of  the  court  be  not  accurately  stated  ; 

2.  That  it  was  found  by  a  grand  jury  of  the  county,  or  if  in  a  city 
court,  of  the  city  in  which  the  court  was  held  ; 

3.  That  the  defendant  is  named,  or  if  his  name  cannot  be  discovered, 
that  he  is  described  by  a  fictitious  name,  with  the  statement  that  it  has 
been  found  impossible  to  discover  his  real  name ; 

4.  That  the  crime  was  committed  at  some  place  within  the  jurisdiction 
of  the  court,  except  wh3re  .  .  .  the  act,  though  done  without  the  local 
jurisdiction  of  the  county,  is  triable  therein  ; 

5.  That  the  crime  was  committed  at  some  time  prior  to  the  finding  of 
the  indictment ; 

6.  That  the  act  or  omission  charged  as  the  crime  is  plainly  and  con- 
cisely set  forth  ; 

7.  That  the  act  or  omission  charged  as  the  crime  is  stated  with  such 
a  degree  of  certainty,  as  to  enable  the  court  to  pronounce  judgment, 
upon  a  conviction,  according  to  the  right  of  the  case. 

§  293.  Upon  the  trial  of  an  indictment,  when  a  variance  between 
the  allegation  therein  and  the  proof,  in  respect  to  time,  or  in  the  name 
or  description  of  any  place,  person,  or  thing,  shall  appear,  the  court 
may,  in  its  judgment,  if  the  defendant  cannot  be  thereby  prejudiced 
in  his  defence  on  the  merits,  direct  the  indictment  to  be  amended,  ac- 


952    MASSACHUSETTS    CRIMINAL    PLEADING    ACT    OF    1899.    [CHAP.  XV. 

cording  to  the  proof,  on  such  terms  as  to  the  postponement  of  the  trial, 
to  be  had  before  the  same  or  another  jury,  as  the  court  may  deem 
reasonable. 


MASSACHUSETTS   CRIMINAL  PLEADING   ACT  OF   1899. 

[Mass.  Revised  Laws,  chap.  218.] 

Sec.  18.  The  circumstances  of  the  act  may  be  stated  according  to 
their  legal  effect,  without  a  full  description  thereof. 

Sec.  19.  If  the  name  of  an  accused  person  is  unknown  to  the  grand 
jury,  he  may  be  described  by  a  fictitious  name  or  by  any  other  prac- 
ticable description,  with  an  allegation  that  his  real  name  is  unknown. 
An  indictment  of  the  defendant  by  a  fictitious  or  erroneous  name  shall 
not  be  ground  for  abatement ;  but  if  at  any  subsequent  stage  of  the 
proceedings  his  true  name  is  discovered,  it  shall  be  entered  on  the 
record  and  may  be  used  in  the  subsequent  proceedings,  with  a  ref- 
erence to  the  fact  that  he  was  indicted  by  the  name  mentioned  in  the 
indictment. 

Sec.  20.  The  time  and  place  of  the  commission  of  the  crime  need 
not  be  alleged  unless  it  is  an  essential  element  of  the  crime.  The  alle- 
gation of  time  in  the  caption  shall,  unless  otherwise  stated,  be  consid- 
ered as  an  allegation  that  the  act  was  committed  before  the  finding  of 
the  indictment,  after  it  became  a  crime,  and  within  the  period  of  lim- 
itations. The  name  of  the  county  and  court  in  the  caption  shall,  un- 
less otherwise  stated,  be  considered  as  an  allegation  that  the  act  was 
committed  within  the  territorial  jurisdiction  of  the  court.  All  allega- 
tions of  the  indictment  shall,  unless  otherwise  stated,  be  considered  to 
refer  to  the  same  time  and  place. 

Sec.  21.  The  means  by  which  a  crime  is  committed  need  not  be  al- 
leged in  the  indictment  unless  they  are  an  essential  element  of  the 
crime. 

Sec.  22.  If  an  allegation  relative  to  a  written  instrument  which  con- 
sists wholly  or  in  part  of  writing,  print  or  figures  is  necessary,  it  may 
describe  such  an  instrument  by  any  name  or  designation  by  which  it  is 
usually  known,  or  by  the  purport  thereof,  without  setting  out  a  copy  or 
facsimile  of  the  whole  or  of  any  part  thereof;  and  no  variance  between 
such  recital  or  description  and  the  instrument  produced  at  the  trial 
shall  be  material,  if  the  identity  of  the  instrument  is  evident  and  the 
purport  thereof  is  sufficiently  described  to  prevent  prejudice  to  the 
defendant. 

Sec.  23.  If  an  allegation  relative  to  any  bullion,  money,  notes,  bank 
notes,  checks,  drafts,  bills  of  exchange,  obligations  or  other  securities 
for  money  of  any  country,  state,  county,  city,  town,  bank,  corpo- 
ration, partnership  or  person  is  necessary,  it  may  describe  it  as  money, 
without  specifying  any  particulars  thereof;  and  such  descriptive  alle- 


SECT.    V.J     MASSACHUSETTS  CRIMINAL  PLEADING  ACT    OF    1899.        953 

gation  shall  be  sustained  by  proof  of  any  amount  of  bullion,  money, 
notes  or  other  securities  for  money  as  aforesaid,  although  the  partic- 
ular nature  thereof  shall  not  be  proved. 

Sec.  24.  The  value  or  price  of  property  need  not  be  stated,  unless  it 
is  an  essential  element  of  the  crime.  If  the  nature,  degree  or  punish- 
ment of  a  crime  depends  upon  the  fact  that  the  property  exceeds  or 
does  not  exceed  a  certain  value,  it  may  be  described,  as  the  case  may 
be,  of  more  than  that  value,  or  of  not  more  than  that  value. 

Sec.  25.  If  an  indictment  for  a  crime  which  involves  the  commission 
or  attempted  commission  of  an  injury  to  property  describes  the  prop- 
erty with  sufficient  certainty  in  other  respects  to  identify  the  act,  it 
need  not  allege  the  name  of  the  owner. 

Sec.  27.  In  an  indictment  for  the  larceny  of  an  animal,  or  for  any 
other  crime  in  respect  thereof,  it  may  be  described  by  the  name  by 
which  it  is  commonly  known,  without  stating  its  age  or  sex  or  whether 
it  is  alive  or  dead. 

Sec.  29.  An  allegation  that  the  defendant  committed  the  act  charged 
shall  be  a  sufficient  allegation  that  he  was  responsible  therefor. 

Sec.  30.  If  an  intent  to  injure  or  defraud  is  an  essential  element  of 
a  crime,  an  intent  to  injure  or  defraud  may  be  alleged  generally,  with- 
out naming  the  person,  corporation  or  government  intended  to  be  in- 
jured or  defrauded.  Proof  of  an  intent  to  injure  or  defraud  any  person 
or  body  corporate  shall  be  competent  to  support  the  allegation. 

Sec.  31.  Different  means  or  different  intents  by  or  with  which  a 
crime  may  be  committed  may  be  alleged  in  the  same  count  in  the 
alternative. 

Sec.  33.  Presumptions  and  conclusions  of  law,  matters  of  which 
judicial  notice  is  taken  and  allegations  which  are  not  required  to  be 
proved  need  not  be  alleged.  An  indictment  shall  not  be  considered 
defective  or  insufficient  because  it  omits  to  allege  that  the  crime  was 
committed,  or  the  act  was  done,  "traitorously,"  "feloniously,"  "  bur- 
glariously," "  wilfully,"  "maliciously,"  "negligently,"  "unlawfully," 
or  otherwise  similarly  to  describe  the  crime,  unless  such  description  is 
an  element  of  the  crime  charged,  or  because  it  omits  to  allege  that  the 
crime  was  committed  or  done  with  "  force  and  arms,"  or  "  against  the 
peace,"  or  against  the  form  of  the  statute  or  statutes,  or  against  a  by- 
law, ordinance,  order,  rule  or  regulation  of  any  public  authority,  nor 
because  it  omits  to  state  or  misstates  the  title,  occupation,  estate  or 
degree  of  the  defendant  or  of  any  other  person  named  in  the  indict- 
ment, or  of  the  name  of  the  county,  city,  town  or  place  of  his  resi- 
dence, unless  such  omission  or  misstatement  tends  to  the  prejudice  of 
the  defendant.  An  indictment  shall  not  be  considered  defective  or  in- 
sufficient by  reason  of  describing  a  fine  or  forfeiture  as  enuring  to  the 
use  of  the  commonwealth  instead  of  to  the  use  of  the  county,  city  or 
town,  nor  by  reason  of  any  misstatement  as  to  the  appropriation  of 
any  fine  or  forfeiture,  nor  by  reason  of  its  failure  to  allege  or  recite  a 
special  statute  or  a  by-law  or  ordinance  of  a  city  or  town  or  order  of 


954   MASSACHUSETTS    CRIMINAL   PLEADING  ACT    OF   1899.    [CHAP.  XV. 

the  mayor  and  aldermen  or  selectmen  or  rules  or  regulations  of  any 
public  board  of  officers. 

Sec.  34.  An  indictment  shall  not  be  quashed  or  be  considered  defec- 
tive or  insufficient  if  it  is  sufficient  to  enable  the  defendant  to  under- 
stand the  charge  and  to  prepare  his  defence  ;  nor  shall  it  be  considered 
defective  or  insufficient  for  lack  of  any  description  or  information 
which  might  be  obtained  by  requiring  a  bill  of  particulars  as  provided 
in  section  thirty-nine. 

Sec.  35.  A  defendant  shall  not  be  acquitted  on  the  ground  of  vari- 
ance between  the  allegations  and  proof  if  the  essential  elements  of  the 
crime  are  correctly  stated,  unless  he  is  thereby  prejudiced  in  his  defence. 
He  shall  not  be  acquitted  by  reason  of  immaterial  misnomer  of  a 
third  party,  by  reason  of  an  immaterial  mistake  in  the  description  of 
property  or  the  ownership  thereof,  by  reason  of  failure  to  prove  un- 
necessary allegations  in  the  description  of  the  crime  or  by  reason  of 
any  other  immaterial  mistake  in  the  indictment. 

Sec.  37.  An  excuse,  exception  or  proviso  which  is  not  stated  in  the 
enacting  clause  of  a  statute  creating  a  crime  or  which  is  stated  only  by 
reference  to  other  provisions  of  the  statute  need  not  be  negatived  in 
the  indictment  unless  it  is  necessary  for  a  complete  definition  of  the 
crime.  If  any  statute  shall  prescribe  a  form  of  indictment  in  which 
an  excuse,  exception  or  proviso  is  not  negatived,  it  shall  be  taken  that 
it  is  not  necessary  to  a  complete  definition  of  the  crime  that  they  should 
be  negatived.  If  a  statute  which  creates  a  crime  permits  an  act,  wliich 
is  therein  declared  to  be  criminal,  to  be  performed  without  criminality 
under  stated  conditions,  such  conditions  need  not  be  negatived. 

Sec.  38.  The  words  used  in  an  indictment  may,  except  as  otherwise 
provided  in  this  section,  be  construed  according  to  their  usual  accepta- 
tion in  common  language ;  but  if  certain  words  and  phrases  are  defined 
by  law,  they  shall  be  used  according  to  their  legal  meaning. 

The  following  words,  when  used  in  an  indictment,  shall  be  sufficient 
to  convey  the  meaning  herein  attached  to  them,  — 

Adultery.  —  The  sexual  intercourse  by  a  married  man  with  a  woman 
not  his  wife,  by  an  unmarried  man  with  a  married  woman,  by  a  married 
woman  with  a  man  not  her  husband. 

Affray.  —  The  fighting  together  of  two  or  more  persons  in  a  public 
place  to  the  terror  of  the  persons  lawfully  tbere. 

False  Pretences. — The  false  repiesentations  made  by  word  or  act 
which  are  of  such  a  character,  or  which  are  made  under  such  circum- 
stances and  in  such  a  way,  with  the  intention  of  influencing  the  action 
of  another,  as  to  be  punishable. 

Forgery. — The  false  making,  altering,  forging  or  counterfeiting  of 
any  instrument  described  in  section  one  of  chapter  two  hundred  and 
nine,  or  any  instrument  which,  if  genuine,  would  be  a  foundation  for 
or  release  of  liability  of  the  apparent  maker. 

Fornication.  — Tiie  sexual  intercourse  between  a  man  and  an  un- 
married woman. 


SECT,  v.]  PEOPLE  V.    OLMSTEAD.  955 

Murder.  —  The  killing  of  a  human  being  with  malice  aforethought. 

Rape.  — The  unlawful  forcible  carnal  knowledge  by  a  man  of  a 
woman  against  her  will  or  without  her  consent;  or  the  carnal  knowledge 
by  a  man  of  a  female  child  under  the  statutory  age  of  consent. 

Rohhery.  —  The  taking  and  carrying  away  of  personal  property  of 
another  from  his  person  and  against  his  will^  by  force  and  violence,  or 
by  assault  and  putting  in  fear,  with  intent  to  steal. 

Stealing.  —  Larceny.  —  The  criminal  taking,  obtaining  or  converting 
of  personal  property,  with  intent  to  defraud  or  deprive  the  owner 
permanently  of  the  use  of  it ;  including  all  forms  of  larceny,  criminal 
embezzlement  and  obtaining  by  criminal  false  pretences. 

Sec.  39.  The  court  may,  upon  the  arraignment  of  the  defendant,  or 
at  any  later  stage  of  the  proceedings,  order  the  prosecution  to  file  a 
statement  of  such  particulars  as  may  be  necessary  to  give  the  defend- 
ant and  the  court  reasonable  knowledge  of  the  nature  and  grounds  of 
the  crime  charged,  and  if  it  has  final  jurisdiction  of  the  crime,  shall  so 
order  at  the  request  of  the  defendant  if  the  charge  would  not  be  other- 
wise fully,  plainly,  substantially  and  formally  set  out.  If  there  is  a 
material  variance  between  the  evidence  and  the  bill  of  particulars,  the 
court  may  order  the  bill  of  particulars  to  be  amended,  and  may  postpone 
the  trial,  which  may  be  before  the  same  or  another  jury,  as  the  court 
may  order.  If,  in  order  to  prepare  for  his  defence,  the  defendant 
desires  information  as  to  the  time  and  place  of  the  alleged  crime  or  as 
to  the  means  by  which  it  is  alleged  to  have  been  committed,  or  more 
specific  information  as  to  the  exact  nature  of  the  property  described 
as  money  or,  if  indicted  for  larceny,  as  to  the  crime  which  he  is 
alleged  to  have  committed,  he  may  apply  for  a  bill  of  particulars  as 
aforesaid. 

Sec.  40.  In  an  indictment  for  criminal  dealing  with  personal  property 
with  intent  to  steal,  an  allegation  that  the  defendant  stole  said  property 
shall  be  suflScient;  and  such  indictment  may  be  supported  by  proof 
that  the  defendant  committed  larceny  of  the  property  or  embezzled  it, 
or  obtained  it  by  false  pretences. 


PEOPLE  V.   OLMSTEAD. 

Supreme  Court  of  Michigan.     1874. 

[Reported  30  Mich.  431.] 

Campbell,  J.^  The  respondent  was  informed  against  for  manslaughter 
in  killing  one  Mary  Bowers,  whom  it  is  averred  he  did  "  feloniously, 
wilfully  and  wickedly  kill  and  slay,  contrary  to  the  statute  in  such 
case  made  and  provided,"  etc.  The  information  does  not  name  the 
offence,  nor  the  manner  or  means  of  its  commission. 

1  Only  so  much  of  the  opinion  as  deals  with  the  validity  of  the  indictment  is 
given.  ^  Ed. 


956  PEOPLE    V.    OLMSTEAD.  [CHAP.  XV. 

Upon  the  trial  the  prosecution,  in  opening,  stated  that  the  prisoner 
was  charged  under  §  7542  of  the  Compiled  Laios,  which  is  as  follows. 

"  Every  person  who  shall  administer  to  any  woman  pregnant  with  a 
quick  child  any  medicine,  drug,  or  substance  whatever,  or  shall  use  or 
employ  any  instrument  or  other  means,  with  intent  thereby  to  destroy 
such  child,  unless  the  same  shall  have  been  necessary  to  preserve  the 
life  of  such  mother,  or  shall  have  been  advised  by  two  physicians  to  be 
necessary  for  such  purpose,  shall,  in  case  the  death  of  such  child  or  of 
such  mother  be  thereby  produced,  be  deemed  guilty  of  manslaughter." 

The  preceding  section  makes  the  malicious  killing  of  an  unborn 
quick  child  manslaughter,  if  done  by  an  injury  to  the  mother  which 
would  have  constituted  her  murder  if  she  had  died. 

The  succeeding  section  makes  all  unnecessary  attempts  to  produce 
the  miscarriage  of  a  pregnant  woman,  whatever  may  be  the  result, 
punishable  as  a  misdemeanor. 

The  distinction,  therefore,  is  clearly  taken,  as  depending  on  the  in- 
tent to  destroy  a  living  unborn  child,  and  supplies  a  defect  at  the  com- 
mon law,  whereby  such  attempts  were  not  felonious,  and  in  some  cases, 
at  least,  may  not  have  been  punishable  at  all. 

The  elements  of  the  crime,  as  applied  to  the  case  before  us,  are 
found  in  the  death  of  the  mother,  produced  by  acts  intended  to  destroy 
a  quick  child ;  that  term  being  used  in  the  statute  as  an  unborn  child 
liable  to  be  killed  by  violence.  The  ambiguity  which,  according  to 
Mr.  Bishop,  seems  to  exist  in  some  statutes,  as  to  the  foetal  condition, 
is  not  found  in  our  statutes,  which  cover  the  whole  ground  by  different 
provisions.  Comp.  L.,  §§  7541,  7542,  7543;  Bishop  on  Statutory 
Crimes,  §§  742-750,  and  cases.  .  .  . 

Objection  was  made  that  the  information  was  not  properly  framed 
to  support  the  conviction. 

The  information  is  very  brief,  and  consists  of  the  single  statement 
that  respondent,  on  a  day  and  year  and  at  a  place  named,  "  one  Mary  A. 
Bowers  feloniously,  wilfully  and  wickedly  did  kill  and  slay,  contrary 
to  the  statute  in  such  case  made  and  provided,  and  against  the  peace 
and  dignity  of  the  state  of  Michigan." 

It  is  not  claimed  by  any  one  that  this  would  have  been  a  good  in- 
dictment at  common  law,  not  only  for  formal  defects,  but  also  for  not 
indicating  in  any  way  the  means  or  manner  of  causing  death.  But  it 
is  justified  under  our  statute,  which  dispenses  with  allegations  of  these, 
and  declares  it  sufficient  "to  charge  that  the  defendant  did  kill  and 
slay  the  deceased."     C.  i.,  §  7916. 

Respondent  claims  that  the  constitutional  right  "  to  be  informed  of 
the  nature  of  the  accusation"  involves  some  information  concerning 
the  case  he  is  called  on  to  meet,  which  is  not  given  b}'  such  a  general 
charge  as  is  here  made.  And  courts  are  certainly  bound  to  see  to  it 
that  no  such  right  is  destroyed  or  evaded,  while  they  are  equally  bound 
to  carry  out  all  legislative  provisions  tending  to  simplify  practice,  so 
far  as  they  do  not  destroy  rights. 


SECT,  v.]  PEOPLE  V.    OLMSTEAD.  957 

The  discussions  on  this  subject  sometimes  lose  sight  of  the  principle 
that  the  rules  requiring  information  to  be  given  of  the  nature  of  the  ac- 
cusation are  made  on  the  theory  that  an  innocent  man  may  be  indicted, 
as  well  as  a  guilty  one,  and  that  an  innocent  man  will  not  be  al)le  to 
prepare  for  trial  without  knowing  wiiat  he  is  to  meet  on  trial.  And  the 
law  not  only  presumes  innocence,  but  it  would  be  gross  injustice  unless 
it  framed  rules  to  protect  the  innocent. 

The  evils  to  be  removed  by  the  various  acts  concerning  indictments 
consisted  in  redundant  verbiage,  and  in  minute  charges  which  were  not 
required  to  be  proven  as  alleged.  It  was  mainly,  no  doubt,  to  remove 
the  necessity  of  averring  what  need  not  be  proved  as  alleged,  and 
therefore  gave  no  information  to  the  prisoner,  that  the  forms  were 
simplified.  And  these  difficulties  were  chiefly  confined  to  common  law 
offences.  Statutory  offences  were  always  required  to  be  set  out  with 
all  the  statutory  elements.  Koster  v.  People,  8  Mich.  R.  431.  The 
statute  designed  to  simplify  indictments  for  statutory  crimes,  which  is 
in  force  in  this  state,  and  is  a  part  of  the  same  act  before  quoted, 
reaches  that  result  by  declaring  that  an  indictment  describing  an  offence 
in  the  words  of  the  statute  creating  it,  shall  be  maintained  after  verdict. 
(7.  i.,  §  7928.  But  both  of  these  sections  must  be  read  in  the  light 
of  the  rest  of  the  same  statute,  which  plainly  confines  the  omission  of 
descriptive  averments  to  cases  where  it  will  do  no  prejudice.  And  so 
it  was  held,  in  Enders  v.  People,  20  Mich.  R.  233,  that  nothing  could 
be  omitted  by  virtue  of  this  statute,  which  was  essential  to  the  de- 
scription of  an  offence. 

Manslaughter  at  common  law  very  generally  consisted  of  acts  of 
violence,  of  such  a  nature  that  indictments  for  murder  and  man- 
slaughter were  interchangeable,  by  the  omission  or  retention  of  the 
allegation  of  malice,  and  of  the  technical  names  of  the  offences.  In  a 
vast  majority  of  cases  a  very  simple  allegation  would  be  enough  for 
the  protection  of  the  prisoner. 

But  where  the  offence  of  manslaughter  was  involuntary  homicide, 
and  involved  no  assault,  but  arose  out  of  some  negligence  or  fault 
from  which  death  was  a  consequential  result,  and  sometimes  not  a 
speedy  one,  the  ordinary  forms  were  deficient,  and  the  indictment  had 
to  be  framed  upon  the  peculiar  facts,  and  could  convey  no  adequate 
information  without  this.     See  2  Bishop's  Cr.  Proced.,  §  538. 

The  offence  for  which  the  respondent  in  this  case  was  put  on  trial, 
originated  in  the  statute  defining  it,  and  could  not  have  come  within 
any  of  the  descriptions  of  manslaughter  at  common  law.  An  innocent 
person,  charged  under  the  information,  could  form  no  idea  whatever 
from  it  of  the  case  likely  to  be  set  up  against  him.  He  might,  perhaps, 
be  fairly  assumed  bound  to  prepare  himself  to  meet  a  charge  of  man- 
slaughter by  direct  violence  or  assault.  But  which  one  was  meant,  out 
of  the  multitudinous  forms  of  indirect  and  consequential  homicide  that 
might  occur  after  a  delay  of  any  time  not  exceeding  a  year,  from  an 
original  wrong  or  neglect,  and  of  which  he  might  or  might  not  have 


958  COMMONWEALTH    V.  KELLEY.  [CHAP.  XV. 

been  informed,  he  could  not  readily  conjecture.  Nothing  could  inform 
him  of  this  statutory  charge,  except  allegations  conforming  to  the 
statute.  These,  we  think,  he  was  entitled  to  have  spread  out  upon 
the  accusation.  Without  them  he  was  liable  to  be  surprised  at  the 
trial,  and  could  not  be  expected  to  prepare  for  it. 

We  are  not  prepared  to  hold  this  information  bad  upon  its  face,  for 
we  are  disposed  to  think,  and  it  was  practically  admitted  on  the  argu- 
ment, that  it  may  ap])ly  to  the  ordinary  homicides  by  assault.  It  was 
not,  therefore,  until  the  evidence  came  in,  that  it  was  made  certain  the 
case  was  different.  The  question  of  sufficiency  does  not  arise  directly 
upon  the  record,  but  on  the  bill  of  exceptions,  and  the  error  was  in 
permitting  a  conviction  on  it. 

The  other  questions  are  closely  connected  with  this,  and  need  not  be 
considered  further. 

It  must  be  certified  to  the  court  below  that  the  verdict  should  be  set 
aside,  and  that  no  further  proceedings  on  this  charge  should  be  had 
under  this  information  as  it  stands. 

The  other  Justices  concurred. 


COMMONWEALTH  v.  KELLEY. 
Supreme  Judicial  Court  op  Massachusetts.     1903. 

[Reported  184  Mass.  320.] 

Hammond,  J.^  It  is  further  argued  by  the  defendant  that,  even  if 
the  evidence  did  show  that  he  committed  a  crime,  it  was  embezzlement 
and  not  larceny,  that  these  two  offences  are  different  in  law,  and  that 
since  the  count  upon  which  he  was  convicted  alleges  larceny  it  is  not 
supported  by  proof  of  embezzlement.  It  appears  that  at  the  trial  the 
defendant  urged  this  distinction,  and  requested  the  judge  to  rule  that 
the  evidence  did  not  show  him  guilty  of  larceny,  and  to  direct  a  verdict 
of  acquittal.  This  the  judge  refused  to  do.  He  further  requested  the 
judge  to  rule  that  the  statute  which  provides  that  "whoever  embezzles, 
or  fraudulently  converts  to  his  own  use,  mone}^  .  .  .  shall  be  deemed 
guilty  of  simple  larceny,"  (Pub.  Sts.  c.  203,  §  37,)  does  not  merge 
the  two  offences  or  make  the  embezzlement  larceny.  The  judge  re- 
fused to  make  this  ruling,  "not  because  it  was  not  true  as  a  bare 
proposition  of  law  but  because  it  was  not  called  for  upon  the  facts 
disclosed." 

The  count  evidently  was  drawn  under  R.  L.  c.  218,  §  38,  and  it 
complies  with  the  form  set  forth  at  the  end  of  that  chapter,  under  the 
title  "larceny  ;"  and  the  question  is  whether  it  covers  the  crime  of 
embezzlement.    The  provisions  of  this  chapter  so  far  as  material  to  this 

1  Only  so  much  of  the  opinion  as  discusses  the  sufficiency  of  the  indictment  is 
given.  —  Ed. 


SECT,   v.]  COMMONWEALTH   V.    KELLEY.  959 

question  first  appear  in  St.  1899,  c.  409,  which  was  passed  in  accord- 
ance with  the  report  and  recommendation  of  the  commissioners  (see 
Senate  Doc.  No.  234  of  that  year)  appointed  under  c.  85  of  the  lie- 
solves  of  1897,  "  to  investigate  and  report  upon  a  plan  for  the  simpli- 
fication of  criminal  pleadings,  and  to  prepare  a  schedule  of  forms  of 
pleadings  to  be  used  in  criminal  cases."  Prior  to  that  statute,  although 
one  guilty  of  embezzlement  was,  in  the  language  of  the  statutes, 
"deemed  ...  to  have  committed  the  crime  of  simple  larceny,"  or  in 
the  later  forms,  "  deemed  guilty  of  simple  larceny,"  still  it  was  held 
that  that  kind  of  larceny  was  of  a  peculiar  and  distinctive  charac- 
ter and  that  the  indictment  must  contain,  in  addition  to  all  the  requisites 
of  an  indictment  for  larceny  at  common  law,  allegations  setting  forth 
the  fiduciary  relation,  or  the  capacity  in  which  the  defendant  acted. 
Accordingly  it  has  been  held  that  proof  of  embezzlement  will  not 
sustain  an  indictment  charging  merely  a  larceny,  and  that  proof  of 
larceny  will  not  sustain  a  charge  of  embezzlement.  Commonwealth 
V.  Simpson,  9  Met.  138;  Commonwealth  /'.  King,  9  Cush.  284;  Com- 
monwealth V.  Berry,  99  Mass.  428.  Somewhat  akin  to  these  two 
crimes  in  many  respects  is  that  of  obtaining  money  or  goods  by  false 
pretences ;  and  an  indictmeut  for  this  offence  differs  from  that  of  lar- 
ceny or  embezzlement.  It  was  felt  by  the  commissioners  that  "  the 
over-refined  and  illogical  distiuctions "  between  these  three  crimes 
"have  led  to  scandalous  abuses  of  justice  by  acquittals,"  and,  "  to 
obviate  the  possibility  of  miscarriage  of  justice  on  this  account,"  they 
proposed  "  a  single  form  of  indictment  for  the  three  crimes,  containing 
simply  an  allegation  that  defendant  '  stole'  certain  goods."  See  1899, 
Senate  Doc.  No.  234,  pp.  16,  17.  The  St.  of  1899,  following  the  rec- 
ommendation of  the  commissioners,  contains  a  simple  form  for  larceny, 
but  no  separate  form  for  embezzlement  or  for  obtaining  money  or 
goods  by  false  pretences.  In  §  12,  under  the  head  of  "Meaning  of 
Words,"  tt  is  provided  that  "the  following  words  when  used  in  an 
indictment  shall  be  sufficient  to  convey  the  meaning  herein  attached  to 
them;"  and  among  others  are  these:  "Stealing. — Larceny,  —  The 
criminal  taking,  obtaining,  or  converting  of  personal  property  with 
intent  to  defraud  or  deprive  the  owner  permanently  of  the  use  of  it ; 
including  all  forms  of  larceny,  criminal  embezzlement,  and  obtaining 
by  criminal  false  pretences."  The  count  in  question  was  drawn  up 
under  the  provisions  of  this  statute  as  subsequently  enacted  in  R.  L. 
c.  218,  §  38.  Under  this  last  statute  the  word  "steal"  in  an  indict- 
ment becomes  a  term  of  art  and  includes  the  criminal  taking  or  con- 
vei'sion  in  either  of  the  three  ways  above  named,  and  hence  the 
indictment  is  sustained,  so  far  as  respects  the  criminal  nature  of  the 
taking  or  conversion,  by  proof  of  any  kind  of  Larceny,  embezzlement 
or  criminal  taking  by  means  of  false  pretences.  If  it  be  objected  that 
this  construction  makes  the  indictment  so  indefinite  that  the  accused  is 
not  sufficiently  informed  of  the  nature  of  the  charge  which  he  is  called 
upon  to  meet,  the  answer  is  that  it  is  provided  in  the  same  statute 


960  COMMONWEALTH    V.    KELLEY.  [CHAP.  XV. 

(§  39)  that  "  the  conrt  may,  upon  the  arraignment  of  the  defendant,  or 
at  any  later  stage  of  the  proceedings,  order  the  prosecution  to  file  a 
statement  of  such  particulars  as  may  be  necessary  to  give  the  defend- 
ant and  the  court  reasonable  knowledge  of  the  nature  and  grounds  of 
the  "  accusation,  and,  if  requested  by  the  accused,  shall  so  order  in 
all  cases  in  which  the  court  has  final  jurisdiction,  where  the  accusation 
would  not  be  otherwise  fully,  plainly,  substantially  and  formally  set 
out.  "If  there  is  a  material  variance  between  the  evidence  and  the 
bill  of  particulars,  the  court  may  order  the  bill  of  particulars  to  be 
amended,  and  may  postpone  the  trial,  which  may  be  before  the  same 
or  another  jury,  as  the  court  may  order.  If,  in  order  to  prepare  for  his 
defence,  the  defendant  desires  information  as  to  the  time  and  place  of 
the  alleged  crime  or  as  to  the  means  by  which  it  Is  alleged  to  have  been 
committed,  or  more  specific  information  as  to  the  exact  nature  of  the 
property  described  as  money,  or,  if  indicted  tor  larceny,  as  to  the  crime 
which  he  is  alleged  to  have  committed,  he  may  apply  for  a  bill  of  par- 
ticulars as  aforesaid."  This  is  a  sufficient  protection  to  the  accused. 
Indeed  it  is  manifest  that  since  under  the  former  practice  the  right  to 
a  bill  of  particulars  was  a  matter  that  lay  within  the  discretion  of  the 
court  and  therefore  could  not  be  claimed  as  of  right,  (Commonwealth  /;. 
Wood,  4  G-ray,  11.)  this  statute,  which  urakes  the  right  to  such  a  bill 
absolute,  places  the  accused  in  a  better  position  than  he  was  before. 
Of  course  the  bill  of  particulars  cannot  enlarge  the  scope  of  the  indict- 
ment. It  cannot  specify  a  charge  not  covei'ed  by  the  indictment.  Its 
only  purpose  is  to  specify  more  particularly  the  acts  constituting  the 
offence. 

In  view  of  these  considerations  we  are  of  opinion  thafc  the  count 
in  question  must  be  regarded  as  including  within  its  "four  corners" 
any  criminal  act  of  taking  or  conversion  of  money  the  property  of  the 
estate  therein  named,  to  the  amount  of  $1,000,  committed  by  the  de- 
fendant within  the  jurisdiction  of  the  court,  and  within  the  statute  of 
limitations,  whether  the  offence  be  larceny,  embezzlement,  or  obtaining 
by  criminal  false  pretences ;  and  consequently  that  it  covered  the  crime 
of  embezzlement  as  desci'ibed  in  Pub.  Sts.  c.  203,  §  46,  of  which  under 
instructions  not  objected  to,  except  as  above  stated,  the  jury  convicted 
the  defendant. 

It  is  further  urged  by  the  defendant  that,  inasmuch  as  the  offence  of 
which  he  was  convicted  was  committed  prior  to  the  statute,  it  is  as  to 
that  ofl'ence  an  ex  post  facto  law,  and  for  that  reason  unconstitutional 
as  applied  to  his  case.  But  this  position  is  untenable.  The  statute 
neither  creates  a  new  crime  nor  in  any  way  changes  one  existing  at  the 
time  it  took  effect ;  nor  does  it  increase  or  in  any  way  affect  the  pun- 
ishment for  any  crime.  It  does  not  establish  any  new  presumption  of 
fact  or  of  law  against  the  accused,  nor  in  any  other  way  alter  any 
rule  of  evidence  or  the  nature  of  the  evidence  required  to  convict. 
The  defendant  was  tried  for  the  same  crime,  under  the  same  pre- 
sumptions as  to  his  guilt  or  innocence  and  under  the  same  rules  of 


SECT,    v.]  STATE    V.    BKOWN.  9f,l 

evidence  as  he  would  have  been  tried  before  the  statute.  It  relates 
purely  to  the  matter  of  technical  pleading  as  to  the  words  to  be  used 
in  setting  forth  a  criminal  act,  and  even  in  this  respect  is  favorable  to 
the  accused  in  that  the  right  to  a  bill  of  particulars,  which  theretofore 
was  within  the  discretion  of  the  court,  has  become  absolute.  In  no 
respect  is  the  situation  of  the  accused  changed  to  his  disadvantage. 
No  citation  of  authorities  is  needed  to  show  that  the  statute  as  thus 
interpreted  is  not  an  ex  post  facto  law  within  the  meaning  of  either  the 
Federal  or  State  constitutions.  The  defendant  was  not  prejudiced  by 
the  action  of  the  court  at  the  trial  in  dealing  with  his  requests.^ 


STATE  V.    BROWN. 
Supreme  Court  of  Wisconsin.     1910. 

[Reported  143  Wis.  405.] 

An  indictment  was  returned  by  a  grand  jury  impanelled  in  Marinette 
county,  wherein  it  was  attempted  to  charge  the  defendant,  in  the  first 
count,  with  obtaining  money  by  false  pretences  from  Marinette  county. 
The  defendant  demurred ;  and  to  review  an  order  sustaining  such  de- 
murrer and  a  judgment  discharging  the  defendant,  the  state  prosecutes 
a  writ  of  error  to  this  court." 

Barnes,  J.  This  case  comes  before  us  by  virtue  of  sec.  4724 «, 
Stats.  (Laws  of  1909,  ch.  224),  on  a  writ  of  error  sued  out  to  review 
the  decision  of  the  lower  court  in  sustaining  a  demurrer  to  an  indict- 
ment. It  is  the  first  cause  brought  to  this  court  at  the  instance  of  the 
state  to  review  a  judgment  in  a  criminal  action  since  the  above  statute 
was  enacted. 

The  defendant  contends  that  the  indictment  is  faulty  in  the  follow- 
ing particulars:  (1)  In  not  averring  that  defendant  obtaiiied  the  money 
referred  to  in  the  various  counts  in  the  indictment.^ 

1.  Sec.  4423,  Stats.  (1898),  provides  that  "Any  person  who  shall 
designedly,  by  any  false  pretences  .  .  .  and  with  intent  to  defraud, 
obtain  from  any  other  person  any  money,"  shall  be  punished  as  therein 
provided. 

"  The  gravamen  of  the  crime  is  the  obtaining  of  the  property  de- 
scribed. .  .  .  This  statute,  like  other  criminal  statutes,  must  receive 
strict  construction."  Bates  v.  State,  124  Wis.  612,  615,  103  N.  W.  251, 
and  cases  cited. 

It  is  contended  by  the  defendant  that  the  allegation  of  the  indict- 
ment, "By  which  false  pretences  the  said  Thomas  W.  Brown  did  then 

1  See  Com.  v.  King,  202  Mass.  379.  —  Ed. 

2  This  statement  is  substituted  for  that  of  the  Reporter.  —  Ed. 

^  Only  so  much  of  the  opinion  as  deals  with  this  objection  to  the  indictment  is 
given.  —  Ed. 


962  STATE    V.    BKOWN.  [CHAP.  XV. 

and  there  unlawfully  and  feloniously  induce  the  said  Marinette  county 
to  pay  the  said  Thomas  W.  Broiim  the  said  sum  of  eighteen  dollars  and 
eighty  cents  of  its  money,  good  and  lawful  money  of  the  United  States, 
the  said  Marinette  county  then  and  there  relying  upon  the  said  repre- 
sentations so  made  "  does  not  charge  that  the  defendant  Brown  ob- 
tained the  money,  or  even  that  the  county  parted  with  it.  It  is  urged 
that  the  word  "  induce  "  may  well  mean  to  persuade,  to  convince,  or  to 
tempt,  and  that  defendant  might  tempt,  persuade,  or  convuice  the 
county  that  it  should  pay  the  money  in  question,  but  that  until  he 
actually  received  it  no  crime  was  committed  under  the  section  of  our 
statutes  referred  to.  The  following  authorities  are  cited  as  sustaining 
the  defendant's  position:  Comra.  v.  Lannan,  1  Allen,  590;  State  v. 
Phelan,  159  Mo.  122,  60  S.  W.  71;  Connor  v.  State,  29  Fla.  455,  30 
Am.  St.  Rep.  126;  State  v.  Lewis,  26  Kan.  123;  Kennedy  -y.  State, 
34  Ohio  St.  310.  The  point  decided  in  each  of  the  authorities  cited  is 
closely  analogous  to  the  one  raised  in  the  case  before  us,  and  the  trial 
court  with  considerable  reluctance  concluded  to  follow  the  decided 
cases.  No  case  decided  under  a  similar  statute  has  been  called  to  our 
attention  where  an  indictment  such  as  the  one  before  us  has  been  held 
good. 

Precedents  from  foreign  jurisdictions  on  matters  of  pleading  and 
practice  in  criminal  cases  are  often  illusory  and  misleading.  Some 
courts  have  adopted  extremely  strict  and  often  highly  technical  rules 
for  the  construction  of  indictments  and  informations.  Others  have 
followed  more  liberal  and  more  reasonable  rules.  In  many  of  the 
states  the  rigor  of  rules  formerly  laid  down  has  been  mitigated  by 
statute  law.  On  a  question  such  as  the  one  before  us  the  judgments 
of  other  tribunals  may  aid,  but  they  cannot  couti'ol  or  conclude  this 
court. 

The  indictment  in  this  case  states  that  the  defendant  "  did  .  .  . 
induce  said  Marinette  county  to  pay  "  him  the  sum  of  $18.80.  Taking 
this  language  in  its  usual  acceptation,  it  means  that  Marinette  county 
paid  over  to  the  defendant,  and  that  the  defendant  received  and  ob- 
tained from  it,  the  sum  stated,  and  it  would,  we  think,  be  so  construed 
by  ninety  nine  out  of  every  hundred  persons  reading  it.  The  learned 
counsel  for  the  defendant  frankly  admitted  on  the  argument  that  such 
was  the  impression  it  created  on  his  mind  when  he  first  read  it,  and 
that  he  arrived  at  the  conclusion  that  a  different  meaning  might  be  at- 
tributed to  it  only  after  his  industry  had  been  rewarded  by  finding  the 
cases  cited. 

If  it  be  conceded  that  the  language  used  might  be  susceptible  of  the 
meaning  contended  for  by  defendant,  it  does  not  follow  that  the  in- 
dictment is  bad,  assuming  that  the  language  used  would  in  its  ordinary 
and  usual  acceptation  be  uuderstood  to  mean  that  the  defendant  in 
fact  obtained  the  money. 

It  has  never  been  held  in  this  state  that  certainty  to  a  certain  intent 
in  particular  was  required  in  criminal  pleading,  although  such  certainty 


SECT.    V.J  STATE    V.    BROWN.  963 

is,  or  at  least  formerly  was,  required  in  many  jurisdictions.  1  Bouv. 
Law  Diet.  (Rawle's  Rev.)  300,  and  cases  cited.  In  State  v.  Downer, 
21  Wis.  274,  it  was  held  that  "  certainty  in  charging  the  offence  to  a 
common  intent  is  all  that  is  required  by  the  rules  of  pleading  in  regard 
to  indictments."  Such  certainty  is  attained  "  by  a  form  of  statement 
in  which  words  are  used  in  their  ordinary  meaning,  though  by  argu- 
ment or  inference  they  may  be  made  to  bear  a  different  one."  1  Bouv. 
Law  Diet.  (Rawle's  Rev.)  299. 

The  letter  as  well  as  the  spirit  of  our  statute  law  is  utterly  antagonis- 
tic to  the  idea  of  applying  exceedingly  strict  and  technical  rules  to  thfe 
construction  of  indictments  or  informations.  This  is  particularly  true 
where,  as  here,  the  defendant  is  not  deprived  of  any  substantial  right 
by  adopting  a  more  liberal  rule  of  construction  and  one  more  consonant 
with  x'eason  and  better  calculated  to  promote  the  ends  of  justice. 

Sec.  4658,  Stats.  (1898),  provides  that  an  information  shall  be  suffi- 
cient if  it  can  be  understood  therefrom  that  the  offence  charged  is  set 
forth  with  such  degree  of  certainty  that  the  court  may  pronounce  judg- 
ment upon  a  conviction  according  to  the  right  of  the  case.  Sec.  4659 
provides  that  no  indictment  or  information  shall  be  deemed  invalid  by 
reason  of  any  defect  or  imperfection  in  matters  of  form  which  shall  no\i 
tend  to  the  prejudice  of  the  defendant.  Sec.  4669  provides  that  worda 
used  in  the  statutes  to  define  a  public  offence  need  not  be  strictly  pur- 
sued in  charging  an  offence  under  such  statutes,  but  other  words  con- 
veying the  same  meaning  may  be  used.  Sec.  4706  provides  that  no 
indictment  or  information  in  a  criminal  case  shall  be  abated,  quashed, 
or  reversed  for  any  error  or  mistake,  where  the  person  and  the  easy 
may  be  rightly  understood  by  the  court,  and  the  court  may  on  motion 
order  an  amendment  curing  such  defect. 

Sec.  2829,  Stats.  (1898),  provides  that  the  court  shall  in  every  stagw 
of  an  action  disregard  any  error  or  defect  in  the  pleadings  or  proceed 
ings  which  does  not  affect  the  substantial  rights  of  the  adverse  part} , 
This  statute  has  been  held  to  apply  to  criminal  as  well  as  to  civil  cases. 
Odette  V.  State,  90  Wis.  258,  262,  62  N.  W.  1054 ;  Cornell  v.  State, 
104  Wis.  527,  80  N.  W.  745;  Vogel  v.  State,  138  Wis.  315,  329,  119 
N.  W.  190.  Sec.  2829,  Stats.  (1898),  has  to  some  extent  been  ampli- 
fied  by  sec.  3072  m,  Stats.  (Laws  of  1909,  ch.  192). 

Believing  as  we  do  that  the  language  used  in  the  indictment  would 
in  its  ordinary  acceptation  be  understood  to  charge  the  defendant  with 
having  received  or  obtained  the  money,  and  bearing  in  mind  that  it  is 
not  necessary  to  use  the  exact  language  of  a  statute  in  pleading,  and 
being  further  convinced  that  the  defect  complained  of  does  not  tend  to 
prejudice  the  defendant,  we  feel  no  hesitancy  in  saying  that  the  de- 
murrer should  not  have  been  sustained  on  the  ground  upon  which  it 
was  held  good.  The  indictment  states  an  offence  under  the  Downer 
Case,  cited  supra.  To  hold  the  pleading  bad  would  be  to  ignore  that 
decision  as  well  as  the  statutes  cited.  The  statutes  referred  to  should 
be  so  construed  as  to  effectuate  the  purpose  which  the  legislature  had 


964  STATE    V.    BROWX.  [CHAP.  XV. 

in  mind  in  passing  them.     State  ex  rel.  McKay  v.  Curtis,   130  Wis. 
357,  110  N.  W.  189. 

The  rights  of  a  defendant  in  a  criminal  case  should  be  jealously  and 
scrupulously  guarded  and  protected  by  the  courts.  But  this  does  not 
mean  that  a  person  accused  of  crime  should  be  turned  loose  on  mere 
technicalities  which  in  no  way  involve  the  merits  of  the  case.  Such 
maladministration  of  our  criminal  law  should  not  be  encouraged  or  tol- 
erated. If  the  defendant  in  this  case  did  not  obtain  the  moneys 
charged  in  the  various  counts  in  the  indictment,  he  has  a  perfect  de- 
fence to  each  and  every  count  therein  contained  and  is  not  deprived  of 
any  right  to  avail  himself  of  such  defence. 


SECT.  I.]  VAUX'S    CASE.  965 


CHAPTER   XVI. 
FORMER  CONVICTION  OR  ACQUITTAL. 


SECTION   I. 

Double  Jeopardy. 

VAUX'S   CASE. 
Qceen's  Bench.     1592. 

[Reported  4  Coke,  44  a.] 

William  Vatts,  at  the  sessions  of  peace  for  the  county  of  Northum- 
berland, held  27  Julii,  anno  S2  Eliz.  before  the  justices  of  peace  of  the 
same  county,  was  indicted  of  voluntarily  poisoning  of  Nicholas  Ridley, 
which  indictment  was  removed  into  the  King's  Bench;  and  in  discharge 
thereof  the  said  Vaux  pleaded  that  at  another  time,  sc.  12  Augusti, 
anno  30  Eliz.,  at  Newcastle  upon  Tyne,  in  the  county  of  Northumber- 
land, before  the  Justices  of  Assise  of  the  same  county  the  said  Vaux 
was  indicted :  quod  cum  NicN  Ridley  nuper  de  W.  in  com'  prced' 
Armig'  jam  defunctiis,  per  multos  annos  ante  ohitum  suum  nuptus 
fuisset  cuidam  Margaretce  uxori  ejus,  et  nullum  exitum  habuit,  prced' 
Wiir  Vaux  nuper  de  K.  in  com'  C.  generos'  subdoU^  caute,  et  diabolice 
intendens  mortem,  venenationem,  et  destructionem  ipsius  Nicolai,  et 
Deum  prce  oculis  non  habens,  20  Becembris,  anno  28  Eliz.  apud  W. 
prcedicf  felonic^,  voluntarie,  et  ex  malitia  sua  precogitata,  persuade- 
bat  eundem  NiclioV  recipeve  et  bihere  que.ndam  potum  mixtum  cum 
quodam  veneno  vocat'  cantharides,  affirmans  et  verijicans  eidem  NicK 
quod'  proecV  potus  sic  mi.vtus  cum  prced"  veneno  vocat'  canth'  non  fuit 
intoxicatus  {Anglice  poisoned)  sed  quod  per  reception'  hide  proid' 
JSfich'  exit'  de  corpore  dictm  Margaretce  tunc  uxoris  suce  procuraret, 
et  haberet  ratione  cujus  quidem  2^e^''^uasionis  et  instigationis  prced' 
JSfich'  postea,  scil.  16  Januarii  anno  supradicto  apud  T.  in  com'  N. 
prcjed  nesciens  prcedictum  potum  cum  veneno  in  forma  prcBclict'  fore 
mixt'y  sed  Jidem  adhibens  prcedicf  persuasioni  dicti  WilUelmi  recepit 
et  bibit,  per  quod  prceclictus  Nicholaus  immediate  post  receptionem 
veneni  prcedicti  p)er  tres  lioras  immediate  sequent'  languebat,  et  postea 
prced'  16  Jan.  anno  supraclict'  ex  venenatione  et  intoxicat'  prced'  apud 
T.  prced'  obiit:  et  sic  prced'  Will'  Vaux  felonicd  et  ex  malitia  sua 
prcecogitata  prcefat'  Nidi  voluntarie  et  felonice  modo  et  forma  praedt 
intoxicavit,  interfecit,  et  murdravit,  contra  pacem,  &c.  Upon  which 
indictment  the  said  Vaux  was  arraigned  before  the  same  Justices,  and 
pleaded  not  guilty ;  and  the  jurors  gave  a  special  verdict,  and  found, 


966  VAUX'S    CASE.  [chap.  XVI. 

quod  pnrd'  Ni.cJi'  Ridley  venenatus  fuit  Anglice  poisoned,  per  recep- 
tlonem  prced'  cantharides,  et  quod  prced'  Will'  Faux  nan  fuit  praisens 
tempore  q\io  prced'  Nich'  Ridley  recepit  prced'  canth'  sed  utrum,  &c. 
And  thereupon  judgment  was  given  by  the  said  justices  of  assise  in  this 
manner :  supier  quo  visis,  et  per  cur'  hie  intellectis  omnibus  et  singulis 
pra'missis,  pro  eo  quod  videtur  cur'  hie  super  tota  materia  per  vere- 
dictum  prced'  in  forma  pnecP  comperf,  quod  prced'  venenatio  per  re- 
ception' canth'  et  prced'  jj^'ocuratio  prced'  Will'  ad  procurand'  prced' 
Nich'  ad  accipiend'  j-trced'  canth'  moclo  et  forma  prout  per  verdict' 
pr(.vcV  compert'  fuit  nan  fuit  felonia  et  murdrum  voluntar':  ideo  con- 
siderat'  est  quod  prced'  Will'  Vaux,  de  felonia  et  murdro  prced'  indicta- 
mento  prced'  superius  sjyecifcat'  necnon  de  dicta  felonica  venenatione 
prced*  Nich'  Ridley  in  eodem  indictamento  no^ninati  eidem  Will'  im- 
posif  eat  sine  die:  and  as  to  the  felony  and  murder  be  pleaded  not 
guilty. 

And,  first,  it  was  resolved  per  totam  curiam  that  the  said  indict- 
ment upon  which  Vaux  was  so  arraigned  was  insufficient ;  and  princi- 
pally because  it  is  uot  expressly  alleged  in  the  indictment  that  the  said 
Ridley  received  and  drank  the  said  poison,  for  the  indictment  is  prad' 
Nich'  nesciens  prced'  potum  cum  veneno  fore  intoxicatum,  sed  fidem 
adhibens  diet'  persuasioni  dicti  W.  recepit  et  bibit,  per  quod,  &c.  So 
that  it  doth  not  appear  what  thing  he  drank,  for  these  words  (venenum 
prcecV)  are  wanting ;  and  the  subsequent  words,  scilicM  per  cjuod  pro  diet' 
N.  iminecliate  post  recep)tionem  veneni  pr<rdirt'  &c.,  which  words  imply 
receipt  of  poison,  are  not  sufficient  to  maintain  the  indictment,  for  the 
matter  of  the  indictment  ought  to  be  full,  express,  and  certain,  and  shall 
not  be  maintained  by  argument  or  Implication,  because  the  indictment 
is  found  by  the  oath  of  laymen.  2.  It  was  agreed  jje?'  curiain  that 
Vaux  was  a  principal  murderer,  although  he  was  not  present  at  the 
time  of  the  receipt  of  the  poison,  for  otherwise  he  would  be  guilty  of 
such  horrible  offence,  and  yet  should  be  unpunished,  which  would  be 
inconvenient  and  mischievous :  for  every  felon  is  either  principal  or 
accessory,  and  if  there  is  no  principal  there  can  be  no  accessory,  cptla 
accessorium  sequitur  principaleyn;  and  if  any  had  procured  Vaux  to 
do  it,  he  had  been  accessory  before ;  cpuod  nota  a  special  case,  where 
the  principal  and  accessory  also  shall  both  be  absent  at  the  time  of  the 
felony  committed.  3.  It  was  resolved  by  the  Lord  Wray,  Sir  Thomas 
Gawdy,  Clench,  and  Fenner,  Justices,  that  the  reason  of  auterfoits 
acquit  was  because  where  the  maxim  of  common  law  is  that  the  life  of 
a  man  shall  not  be  twice  put  in  jeopardy  for  one  and  the  same  offence, 
and  that  is  the  reason  and  cause  that  auterfoits  acquitted  or  convicted 
of  the  same  offence  is  a  good  plea;  yet  it  is  intendable  of  a  lawful 
acquittal  or  conviction,  for  if  the  conviction  or  acquittal  is  not  lawful, 
his  life  was  never  in  jeopardy ;  and  because  the  indictment  in  this  case 
was  insufficient,  for  this  reason  he  was  not  legititno  mocJo  accjuietatus, 
and  that  is  well  proved,  because  upon  such  acquittal  he  shall  not  have 
an  action  of  conspiracy,  as  it  is  agreed  in  9  E.  4. 12  a.  b.  vide  20  E.  4,  6. 


SECT.    I.]  REGINA   V.   DEANE.  967 

And  in  such  case  in  appeal,  notwithstanding  such  insufficient  indict- 
ment, the  abettor  shall  be  enquired  of  as  it  is  there  also  held :  and 
although  the  judgment  is  given  that  he  shall  be  acquitted  of  the  felony, 
yet  this  acquittal  shall  not  help  him,  because  he  was  not  legitimo  modo 
acquietatus ;  and  when  the  law  saitli  that  auterfoits  acquitted  is  a  good 
plea,  it  shall  be  intended  when  he  is  lawfully  acquitted  ;  and  that  agrees 
with  the  old  book  in  29  E.  3,  Corone  444,  where  it  is  agreed  if  the  pro- 
cess upon  indictment  or  appeal  is  not  sufficient,  yet  if  the  party  appears 
(by  which  all  imperfections  of  the  process  are  saved)  and  is  acquitted, 
he  shall  be  discharged ;  and  if  the  appeal  or  indictment  is  insufficient 
(as  our  case  is)  there  it  is  otherwise:  but  if  one,  upon  an  insufficient 
indictment  of  felony,  has  judgment,  quod  suspend'  per  coll\  and  so  at- 
tainted, which  is  the  judgment  and  end  which  the  law  has  appointed 
for  the  felony,  there  he  cannot  be  again  indicted  and  arraigned  until 
this  judgment  is  reversed  by  error  ;  but  when  the  offender  is  discharged 
upon  an  insufficient  indictment,  there  the  law  has  not  had  its  end ;  nor 
was  the  life  of  the  party,  in  the  judgment  of  the  law,  ever  in  jeopardy ; 
and  the  wisdom  of  the  law  abhors  that  great  offences  should  go  un- 
punished, which  was  grounded  without  question  upon  these  ancient 
maxims  of  law  and  state ;  maleficAa  non  debent  remanere  impimita,  et 
impunitas  continuum  affectum  tribuit  delinquendi,  et  minatur  inno- 
centes  qui  parcit  nocentibus :  so  if  a  man  be  convicted  either  by  verdict 
or  confession  upon  an  insufficient  indictment,  and  no  judgment  there- 
upon given,  he  may  be  again  indicted  and  arraigned,  because  his  life 
was  never  in  jeopardy,  and  the  law  wants  its  end ;  and  afterwards, 
upon  a  new  indictment,  the  said  Vaux  was  tried  and  found  guilty,  and 
had  his  judgment  and  was  hanged. 


EEGINA  V.   DEANE. 
Liverpool  Winter  Assizes.     1851. 

[Reported  5  Cox  C.  C.  501.] 

The  prisoner  was  indicted  for  forging  the  acceptance  to  a  bill  of  ex- 
change for  £154  16s.  Sd. 

The  jury  had  been  sworn  and  charged  to  inquire  into  the  guilt  of  the 
prisoner. 

Simon,  for  the  prosecutor,  had  opened  the  case,  when 

Monk,  for  the  prisoner,  having  come  into  court  during  the  opening 
of  the  learned  counsel  for  the  prosecution,  informed  his  lordship  that 
the  prisoner  was  not  prepared  with  his  defence ;  upon  which 

Erle,  J.,  discharged  the  jury  from  giving  a  verdict,  observing  that, 
with  the  consent  of  both  parties,  there  was  power  to  do  so ;  and  such 
consent  being  then  given,  the  trial  was  accordingly  postponed  to  the 
following  day.  His  lordship  added  that  Mr.  Baron  Parke  held  the 
same  opinion. 


968  COMMONWKALTH    V.    GREEN.  [CHAP.    XVI. 


COMIMONWEALTH  v.    ALDERMAN. 
Supreme  Judicial  Court  of  Massachusetts.     1808. 

[Reported  4  Mass.  477.] 

The  defendant  being  arraigned  on  an  indictment  for  an  assault  and 
battery,  and  being  enquired  of  by  the  clerk  whether  he  was  guilty  or 
not  guilty,  said  that  he  was  guilty,  but  added  that  he  had  himself  in- 
formed a  justice  of  the  peace  for  the  county  of  his  offence,  by  whom  he 
had  been  sentenced  to  pay  a  fine,  &c. 

The  Court  directed  the  clerk  to  enter  the  plea  of  guilty  alone  observ- 
ing that  it  had  heretofore  been  solemnly  determined  that  a  conviction 
of  a  breach  of  the  peace  before  a  magistrate,  on  the  confession  or  in- 
formation of  the  offender  himself  was  no  bar  to  an  indictment  by  the 
grand  jury  for  the  same  offence.^ 


COMMONWEALTH  v.   GREEN. 
Supreme  Judicial  Court  of  Massachusetts.     1822. 

[Reported  17  Mass.  515.] 

Parker,  C.  J.^  The  prisoner  having  been  convicted  by  the  verdict 
of  a  jury  of  the  crime  of  murder  at  the  last  term  of  the  court,  moved 
for  a  new  trial;  because,  as  alleged  in  his  motion,  one  Sylvester  Stod- 
dard, who  had  been  sworn  as  a  witness  on  the  part  of  government,  and 
who  had  testified  to  the  jury,  had  been  convicted  of  the  crime  of  larceny, 
in  a  court  having  jurisdiction  of  the  offence  within  the  State  of  New 
York ;  whereby,  as  is  alleged,  he  was  rendered  infamous,  and  for  that 
reason  his  testimony  could  not  be  received  in  a  court  of  justice  in  this 
Commonwealth.  A  copy  of  the  record  of  that  conviction  has  been  pro- 
duced in  support  of  the  motion  ;  and  sufficient  evidence  has  been  given 
to  satisfy  the  court,  for  the  purpose  of  sustaining  this  motion,  that  the 
Sylvester  Stoddard,  who  was  sworn  and  examined  on  the  trial  of  the 
prisonei',  was  the  subject  of  that  conviction.  It  appeared  also  that 
judgment  was  rendered  upon  that  conviction,  and  was  executed  upon 
the  convict,  within  the  public  prison  of  the  State  of  New  York. 

It  has  been  argued  by  the  attorney  and  solicitor-general  that  by  law 
a  new  trial  cannot  be  granted  of  a  capital  felony ;  and  it  appears  by 
the  English  text-books,  and  by  several  decisions  cited  in  support  of  the 
position,  that  in  cases  of  felony,  a  new  trial  is  not  usually  allowed  by 
the  courts  of  that  country.     But  whatever  reasons  may  exist  in  that 

1  "  A  like  decision  was  made  in  Low's  case,  about  A.  d.  1783.  In  neither  case  wa.s 
there  any  notice  to  the  party  injured."     6  Dane  Abr.  732.  —  Ed. 

2  Part  of  the  opinion  onh^  is  given.  —  Ed. 


SECT.   I.]  COMMONWEALTH   V.    GREEN.  969 

country  for  this  practice,  we  are  unable  to  discern  any  sufficient  ground 
for  adopting  it  here. 

That  a  prisoner,  who  has  been  tried  for  a  felony,  and  acquitted, 
should  not  be  subjected  to  a  second  trial  for  the  same  offence,  seems 
consistent  with  the  humane  principles  of  the  common  law,  in  relation  to 
those  whose  lives  have  been  once  put  in  jeopardy.  But  the  same  hu- 
mane principles  would  appear  to  require  that  after  a  conviction,  a  pris- 
oner should  be  indulged  with  another  opportunity  to  save  his  life,  if 
anything  had  occurred  upon  the  trial  which  rendered  doubtful  the  jus- 
tice or  legality  of  his  conviction.  Nemo  his  debet  vexari  pro  una  et 
eadem  causa  is  a  maxim  of  justice,  as  well  as  of  humanity  ;  and  was 
established  for  the  protection  of  the  subject  against  the  oppressions  of 
government.  But  it  does  not  seem  a  legitimate  consequence  of  this 
maxim  that  one  who  has  been  illegally  convicted  should  be  prevented 
from  having  a  second  inquiry  into  his  offence  ;  that  he  may  be  ac- 
quitted, if  the  law  an<l  the  evidence  will  justify  an  acquittal. 

It  is  true  that,  in  England,  the  utmost  caution  is  used  on  capital 
trials  in  favor  of  life  ;  and  if  an  irregularity  materially  affecting  the 
trial  occurs  to  the  injury  of  the  accused,  the  court  usually  represents 
such  matter  to  the  crown,  and  a  pardon  is  generally  granted.  But  it  is 
the  right  of  every  subject  of  that  country,  and  of  every  citizen  of  this, 
to  have  a  fair  and  legal  trial  before  his  peers,  the  jury ;  and  it  is  hardly 
consistent  with  that  right,  that  it  should  be  left  to  the  will  or  discretion 
of  the  judge  whether  a  representation  of  an  actual  irregularity  shall 
be  made  to  the  pardoning  power  ;  or  to  the  discretion  of  the  latter, 
whether  that  power  shall  be  exercised  in  favor  of  a  person  unlawfully 
convicted. 

Where  the  error  appears  of  record,  in  either  country,  the  court  will 
arrest  the  judgment  after  a  verdict  of  guilty  ;  and  the  party  may  be 
again  indicted  and  tried  for  the  same  offence.  If  the  error  does  not 
appear  of  record,  but  arises  from  inadvertency  of  the  judge,  in  reject- 
ing or  admitting  evidence,  or  from  misbehavior  of  the  jury,  or  other 
cause  which  would  be  good  ground  for  a  new  trial  in  civil  actions  or 
misdemeanors,  justice  and  consistency  of  principle  would  seem  to  de- 
mand that  the  person  convicted  should,  upon  his  own  motion,  have 
another  trial ;  instead  of  being  obliged  to  rely  upon  the  disposition  of 
the  court  to  recommend  a  pardon,  or  of  the  executive  power  to  grant 
it.  It  is  not  enough,  that  the  life  of  the  accused  will  generally  be  safe 
in  the  hands  of  such  highly  responsible  public  agents.  The  right  of 
the  subject  to  be  tried  by  his  peers,  according  to  the  forms,  as  well  as 
principles,  of  law,  is  the  only  certain  security  that  ' '  at  all  times  and 
under  all  circumstances  "  that  protection  which  the  constitution  extends 
to  all  will  be  effectually  enjoyed. 

Nor  is  it  for  the  public  safety  and  interest  that  new  trials  should  be 
refused  in  such  cases.  For  it  must  be  obvious  that  in  most  cases  of 
irregularity  which  would  be  a  good  cause  for  another  trial  if  in  the 
power  of  the  court  to  grant  it,  a  pardon,  upon  the  representation  of  the 


970  COMMONWEALTH    V.    LOUD.  [CHAP.  XVI. 

court,  would  be  thought  to  follow  of  course ;  and  thus,  in  many  cases, 
public  justice  miglit  be  prevented  on  account  of  defect  in  form,  or  some 
irregularity  not  affecting  the  merits  of  the  case,  which  mischief  might 
be  avoided  by  another  trial. 

For  these  reasons  we  think  there  is  a  power  in  this  court  to  grant  a 
new  trial  on  the  motion  of  one  convicted  of  capital  offence,  sufficient 
cause  being  shown  therefor ;  notwithstanding  the  English  courts  are 
supposed  not  to  exercise  such  authority  ;  and  if  this  opinion  needs  sup- 
port, the  case  of  John  Fries,  who,  after  conviction  of  treason,  was  tried 
a  second  time,  and  the  case  in  South  Carolina,  cited  at  the  bar  from 
Bay's  reports,  are  sufficient  for  this  purpose.  In  the  case  of  the  United 
States  V.  Fries,  Mr.  Rawle,  the  district  attorney,  admitted  the  power  of 
the  court  to  grant  a  new  trial,  and  argued  only  against  the  propriety  of 
exercising  the  power  in  that  case.  Judge  Iredell  expressly  admitted 
the  power;  and  Judge  Peters,  who  was  against  a  new  trial,  although  he 
yielded  to  the  Circuit  Judge,  did  not  deny  the  authority  of  the  court 
to  grant  it.  In  a  late  case  also,  in  New  York,  The  People  v.  Groodwin, 
which  was  a  case  of  felony,  it  was  decided  that  the  cause  might  be 
taken  from  the  jury,  and  a  new  trial  ordered. 


COMMONWEALTH  v.   LOUD. 
Supreme  Judicial  Court  of  Massachusetts.     1841. 
[Reported  .3  Met.  328.] 

The  defendant  was  tried  in  the  Court  of  Common  Pleas,  before 
Warren,  J.,  on  an  indictment  found  at  April  term,  1841,  charging  him 
Tfith  feloniously  stealing,  &c.,  certain  lumber.  After  the  testimony 
against  him  had  been  introduced,  and  the  judge  had  instructed  the  jury 
that  the  testimony,  if  believed  by  them,  proved  a  larceny,  the  defendant 
proposed  to  prove  a  prior  conviction  of  the  same  offence,  as  a  bar  to 
this  indictment ;  and  offered,  for  that  purpose,  a  record  of  certain  pro- 
ceedings before  a  justice  of  the  peace  in  and  for  this  county.  On 
inspecting  that  record,  it  appeared  that  L.  H.  Loud,  in  January,  1841, 
presented  a  complaint  to  said  Justice,  in  which  he  alleged  that  on  the 
10th  of  August,  1840,  certain  lumber  (admitted  to  be  the  same  that 
was  described  in  the  indictment)  was  feloniously  taken,  stolen,  and  car- 
ried away,  and  that  the  complainant  had  probable  cause  to  suspect,  and 
did  suspect,  that  the  defendant  did  feloniously  take,  steal  and  carry 
away  the  same  ;  that  the  said  justice  thereupon  issued  a  warrant  against 
the  defendant,  on  wliich  the  defendant  was  carried  before  the  justice 
and  arraigned  ;  that  the  defendant  pleaded  that  he  was  not  guilty,  and 
that  after  a  full  hearing  the  justice  found  him  guilty,  and  imposed  on 
him  a  fine  of  ten  dollars  with  costs  of  prosecution. 

It  was  proved  or  admitted  that  the  defendant  paid  the  said  fine  and 
costs. 


SECT.    I.]  COMMONWEALTH    V.    LOUD.  971 

The  judge  ruled  that  said  proceedings  did  not  constitute  a  bar  to 
this  prosecution,  and  the  jury  found  the  defendant  guilty.  To  this 
ruling  the  defendant  excepted. 

Putnam,  J.  This  case  comes  before  us  on  exceptions  to  the  ruling 
of  the  Court  of  Common  Pleas,  and  we  decide  it  on  the  last  which  ap- 
pears to  be  made,  namely,  that  the  defendant  offered  to  prove  the  record 
and  pi'oceedings  of  a  prior  conviction  for  the  same  offence,  before  a 
justice  of  the  peace,  as  a  bar,  but  that  the  court  ruled  that  the  same 
did  not  constitute  a  bar  to  this  prosecution.  And  the  attorney-general 
admits  that  this  case  is  to  be  taken  and  considered  by  the  court  as  if 
that  plea  had  been  formally  made  with  proper  averments ;  that  the 
larceny  of  which  the  defendant  was  convicted  was  of  the  same  prop- 
erty for  the  stealing  of  which  he  has  been  again  indicted  and  con- 
victed ;  and  that  the  defendant  submitted  to  the  former  judgment,  and 
performed  the  sentence.  But  it  is  contended  for  the  Commonwealth, 
that  the  supposed  former  conviction  was  not  only  erroneous,  but  was 
merely  void. 

In  the  case  of  Commonwealth  v.  PhiUips,  16  Pick.  211,  it  was  held 
that  a  conviction,  on  a  complaint  in  similar  form  to  that  which  was 
used  in  the  case  at  bar,  was  erroneous  ;  and  the  judgment  was  arrested. 
The  defendant  excepted  to  that  judgment,  as  he  well  might.  But 
in  the  case  at  bar,  the  defendant  waived  any  exception  to  the  judg- 
ment, complaint,  proceedings,  or  sentence ;  and  he  has  performed  the 
sentence. 

The  Commonwealth  now  desire  to  have  those  proceedings  held  for 
nothing,  so  that,  by  an  indictment  in  technical  and  legal  form,  the  de- 
fendant may  be  again  tried  and  punished  for  the  same  offence  of  which 
he  has  been  informally  convicted.  We  cannot  think  that  those  proceed- 
ings before  the  magistrate  were  merely  void.  On  the  contrary,  it  is 
reasonable  to  believe  that  the  complainant  intended  to  prosecute  for  a 
larceny.  The  defendant  understood  it  so,  and  so  did  the  magistrate. 
Now  the  judgment  that  the  defendant  was  guilty,  although  upon  pro- 
ceedings which  were  erroneous,  is  good  until  the  same  be  reversed. 
This  rule  of  criminal  law  is  well  settled.  It  was  the  right  and  privi- 
lege of  the  defendant  to  bring  a  writ  of  error,  and  reverse  that  judg- 
ment ;  which  writ  would  have  been  sustained  by  the  case  before  cited 
of  Commonwealth  v.  Phillips ;  but  he  might  well  waive  the  error  and 
submit  to  and  perform  the  judgment  and  sentence,  without  dang'er  of 
being  subjected  to  another  conviction  and  punishment  for  the  same 
offence.  Vaux's  case,  4  Co.  45  ;  2  Hale  P.  C.  251 ;  2  Hawk.  c.  36,  §  10, 
etseq.;  1  Stark.  Crim.  PI.  (2d  ed.)  329,  330. 

The  evidence  which  was  offered,  we  think,  constituted  a  good  defence 
to  the  indictment.  The  bill  of  exceptions  is  sustained.  Thei-efore  the 
verdict  should  be  set  aside,  and  the  defendant  should  go  thereof  dis- 
charged, without  day. 


^72  UNITED    STATES    V.    BALL.  [CHAP.  XVI. 


UNITED   STATES   v.  BALL. 
Supreme  Court  of  the  United  States.     1896. 

[Reported  163  U.  S.  662.] 

Gray,  J.^  At  October  term,  1889,  of  the  Circuit  Court  of  the 
United  States  for  the  Eastern  District  of  Texas,  the  grand  jury  re- 
turned an  indictment  against  Millard  Fillmore  Ball,  John  C.  Ball  and 
Robert  E.  Boutwell,  for  the  murder  of  William  T.  Box,  alleging  that 
the  defendants,  being  white  men  and  not  Indians,  on  June  26,  1889,  in 
Pickens  county,  in  the  Chickasaw  Nation,  in  the  Indian  Territory,  did 
unlawfully  and  feloniously,  and  with  their  malice  aforethought,  and 
with  a  deadly  weapon,  to  wit,  a  gun,  held  in  their  hands,  and  loaded 
and  charged  with  gunpowder  and  leaden  balls,  make  an  assault  upon 
the  body  of  William  T.  Box,  and  "  did  shoot  off  and  discharge  the  con- 
tents of  said  gun  in  and  upon  the  body  of  said  William  T.  Box,  in- 
flicting thereon  ten  mortal  wounds,  of  which  mortal  wounds  the  said 
William  T.  Box  did  languish,  and  languishing  did  die." 

Upon  that  indictment,  the  three  defendants  were  arraigned,  and 
pleaded  not  guilty,  and  were  tried  together  upon  the  issues  so  joined. 
The  trial  began  on  Wednesday,  October  30,  1889,  and  proceeded  from 
day  to  day  until  Saturday,  November  2,  when  the  jury  retired  to  con- 
sider of  their  verdict,  and  no  verdict  having  been  returned  at  the  usual 
hour  of  adjournment,  the  court  was  kept  open  to  receive  the  verdict. 
On  Sunday,  November  3,  1889,  the  jury  returned  a  verdict  as  follows  : 
-'  We,  the  jury,  find  the  defendants  J.  C.  Ball  and  R.  E.  Boutwell 
guilty,  as  charged  in  this  indictment ;  and  we  find  M.  Fillmore  Ball 
not  guilty."  The  court,  on  the  same  day,  made  the  following  order : 
"  It  is  therefore  considered  by  the  court  that  the  defendants  J.  C.  Ball 
and  R.  E.  Boutwell  are  guilty,  as  charged  in  the  indictment  herein, 
and  as  found  by  the  jury ;  and  it  is  ordered  that  they  be  remanded  to 
the  custody  of  the  marshal,  and  be  by  him  committed  to  the  county 
jail  of  Lamar  county,  to  await  the  judgment  and  sentence  of  the  court. 
It  is  further  ordered  that  the  defendant  M.  F.  Ball  be  discharged  and 
go  hence  without  day." 

Afterwards,  at  the  same  term,  John  C.  Ball  and  Robert  E.  Bout- 
well were  adjudged  guilty  and  sentenced  to  death,  and  sued  out  a  writ 
of  error  from  this  court ;  and  in  the  assignment  of  errors  filed  by  them 
in  the  Circuit  Court,  (as  appears  by  the  record  transmitted  to  this 
court  in  that  case,)  specified  among  other  things,  "  because  no  legal 
indictment  was  returned  into  court  against  respondents,"  in  that  the 
indictment  on  which  they  were  tried  "  nowhere  alleges  when  and  where 
said  William  T.  Box  died;"  and  "for  the  errors  stated  and  apparent 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  former  jeopardy  is  given. 
—  Ed. 


SECT.  1.]  UNITED    STATES   V.    BALL,  973 

upon  the  record  therein,  respondents  pray  that  the  judgment  be  re- 
versed, and  the  cause  remanded  for  a  new  trial,"  And  the  brief  then 
filed  in  their  behalf  concluded  by  submitting  that  the  judgment  ought 
to  be  reversed,  and  the  indictment  dismissed. 

Upon  that  writ  of  error,  this  court,  at  October  term,  1890,  held  that 
that  indictment,  although  sufficiently  charging  an  assault,  yet,  by  rea- 
son of  failing  to  aver  either  the  time  or  the  place  of  the  death  of  Box, 
was  fatally  defective,  and  would  not  support  a  sentence  for  murder ; 
and  therefore  reversed  the  judgments  against  John  C.  Ball  and  Robert 
E.  Boutwell,  and  remanded  the  case  with  directions  to  quash  the  in- 
dictment, and  to  take  such  further  proceedings  in  relation  to  them  as 
to  justice  might  appertain.     Ball  v.  United  States,  140  U.  S.  118,  136. 

At  April  term,  1891,  of  the  Circuit  Court,  that  indictment  was  dis- 
missed; and  the  grand  jury  returned  against  all  three  defendants  a 
new  indictment,  (being  the  one  now  before  the  court, )  like  the  former 
one,  except  that,  after  charging  the  assault,  with  malice  aforethought, 
and  with  a  loaded  gun,  upon  Box  on  June  26,  1889,  in  Pickens  county 
in  the  Indian  Territory,  it  went  on  to  charge  that  the  three  defendants 
"did  then  and  there  shoot  off  and  discharge  the  contents  of  said  gun 
at,  in  and  upon  the  body  of  said  William  T.  Box,  inflicting  thereon  a 
mortal  wound,  of  which  mortal  wound  the  said  William  T.  Box  did 
languish,  and  languishing  did  then  and  there  instantly  die,  and  did 
then  and  there  die  within  a  year  and  a  day  after  the  infliction  of  the 
said  mortal  wound  as  aforesaid." 

To  this  indictment  the  defendant  Millard  F.  Ball  filed  a  plea  of 
former  jeopardy  and  former  acquittal,  relying  upon  the  trial,  the  ver- 
dict of  acquittal,  and  the  order  of  the  court  for  his  discharge,  upon  the 
former  indictment ;  a  certified  copy  of  the  record  of  the  proceedings 
upon  which  was  annexed  to  and  made  part  of  his  plea. 

The  defendants  John  C.  Ball  and  Boutwell  filed  a  plea  of  former 
jeopardy,  by  reason  of  their  trial  and  conviction  upon  the  former  in- 
dictment, and  of  the  dismissal  of  that  indictment. 

Both  those  pleas  were  overruled  by  the  court,  and  the  three  defend- 
ants then  severally  pleaded  not  guilty. 

At  the  trial,  it  appeared  that  William  T.  Box  was  killed  on  June  26, 
1889  ;  the  defendants  offered  in  evidence  the  record  of  the  proceedings 
upon  the  former  indictment ;  and  it  was  admitted  by  all  parties  that 
the  offence  charged  in  the  former  indictment  and  that  charged  in  the 
present  indictment  was  one  and  the  same  transaction  and  offence,  to 
wit,  the  killing  of  Box  by  the  three  defendants  ;  that  the  defendants  in 
the  two  indictments  were  the  same  persons ;  and  that  no  writ  of  error 
was  ever  sued  out  upon  the  judgment  or  order  entered  upon  the  former 
indictment  as  to  Millard  F.  Ball. 

The  Circuit  Court,  among  other  instructions,  instructed  the  jury  to 
find  against  both  pleas  of  former  jeopardy,  because  this  court  had  de- 
cided that  the  former  indictment  was  insufficient  as  an  indictment  for 
murder.     The  jury  returned  a  verdict  of  guilty  of  murder  against  all 


974  UNITED    STATES    V.    BALL.  [CHAP.  XVL 

three  defendants  ;  each  of  them  was  adjudged  guilty  accordingly,  and 
sentenced  to  death ;  and  thereupon  they  sued  out  this  writ  of  error. 

The  first  matter  to  be  considered  is  the  effect  of  the  acquittal  of 
Millard  F.  Ball  by  the  jury  upon  the  trial  of  the  former  indictment. 

In  Elngland,  an  acquittal  upon  an  indictment  so  defective  that,  if  it 
had  been  objected  to  at  the  trial,  or  by  motion  in  arrest  of  judgment,  or 
by  writ  of  error,  it  would  not  have  supported  any  conviction  or  sentence, 
has  generally  been  considered  as  insufficient  to  support  a  plea  of  former 
acquittal.  2  Hale  P.  C.  248,  394;  2  Hawk.  P.  C.  c.  35,  §  8;  1  Stark. 
Crim.  PI.  (2d  ed.)  320;  1  Chit.  Crim.  Law,  458;  Archb.  Crim.  PI.  & 
Ev.  (19th  ed.)  143  ;  1  Russell  on  Crimes  (6th  ed.),  48.  And  the  gen- 
eral tendency  of  opinion  in  this  country  has  been  to  the  same  effect. 
3  Greenl.  Ev.  §  35  ;  1  Bishop's  Crim.  Law,  §  1021,  and  cases  there 
cited. 

The  foundation  of  that  doctrine  is  Vaux's  case,  4  Rep.  44,  in  which 
William  Vaux,  being  duly  indicted  for  the  murder  of  Nicholas  Ridley 
by  persuading  him  to  drink  a  poisoned  potion,  pleaded  a  former  ac- 
quittal, the  record  of  which  set  forth  a  similar  indictment  alleging  that 
Ridley,  not  knowing  that  the  potion  was  poisoned,  but  confiding  in  the 
persuasion  of  Vaux,  took  and  drank  (without  saying  "  took  and  drank 
said  potion ") ;  a  plea  of  not  guilty ;  a  special  verdict,  finding  that 
Ridley  was  killed  by  taking  the  poison,  and  that  Vaux  was  not  present 
when  he  took  it ;  and  a  judgment  rendered  thereon  that  the  poisoning 
of  Ridley  and  persuading  him  to  take  the  poison,  as  found  by  the  ver- 
dict, was  not  murder,  and  that  the  defendant  go  without  day  —  eat  sine 
die.  Upon  a  hearing  on  the  plea  of  autrefois  acquit,  the  Court  of 
Queen's  Bench  was  of  opinion  that  Vaux  was  a  principal,  although  not 
present  when  Ridley  took  the  poison ;  but  that  the  indictment  was  in- 
sufficient, for  not  expressly  alleging  that  Ridley  drank  the  poison ;  and 
that  "  because  the  indictment  in  this  case  was  insufficient,  for  this  rea- 
son he  was  not  legitimo  modo  acquietatus,"  "  nor  was  the  life  of  the 
party,  in  the  judgment  of  the  law,  ever  in  jeopardy." 

Yet  the  decision  in  Vaux's  case  was  treated,  both  by  Lord  Coke  and 
by  Lord  Hale,  as  maintainable  only  upon  the  ground  that  the  judgment 
upon  the  first  indictment  was  quod  eat  sine  die,  which  might  be  given 
as  well  for  the  insufficiency  of  the  indictment,  as  for  the  defendant's 
not  being  guilty  of  the  offence ;  and  Lord  Hale  was  clearly  of  opinion 
that  a  judgment  quod  eat  inde  quietus  could  not  go  to  the  insufficiency 
of  the  indictment,  but  must  go  to  the  matter  of  the  verdict,  and  would  be 
a  perpetual  discharge.  3  Inst.  214  ;  2  Hale  P.  C.  394,  395.  And  Mr. 
Starkie  has  observed :  "  The  doctrine  expounded  in  this  case  does  not 
appear  to  consist  with  the  general  principle  on  which  the  plea  of  autre- 
fois acquit  is  said  to  depend,  since  an  acquittal  upon  a  special  verdict 
would  leave  the  ilefendant  exposed  to  a  second  prosecution,  whenever 
a  formal  flaw  could  be  detected  in  the  first  indictment  at  any  subse- 
quent period."     1  Stark.  Crim.  PI.  320,  note. 

In  the  leading  American  case  of  People  v.  Barrett,  1   Johns.  G6, 


SF.CT.    I.]  UNITED    STATES    V.    BALL.  975 

while  a  majority  of  the  court,  consisting  of  Chief  Justice  Kent  and 
Justices  Thompson  and  Spencer,  followed  tiie  P^nglish  authorities,  Jus- 
tices Livingston  and  Tompkins  strongly  dissented,  and  their  reasons 
were  fully  stated  by  Mr.  Justice  Livingston,  who,  after  distinguishing 
cases  in  which  upon  the  first  trial  there  had  been  no  general  verdict  of 
acquittal  by  the  jury,  but  only  a  special  verdict,  upon  which  the  court 
had  discharged  the  defendant,  as  well  as  cases  in  which  the  defendant 
himself  had  suggested  the  imperfection  in  the  first  indictment,  and 
thereupon  obtained  judgment  in  his  favor,  said :  "  These  defendants 
have  availed  themselves  of  no  such  imperfection,  if  any  there  were, 
nor  has  any  judgment  to  that  effect  been  pronounced.  This  case,  in 
short,  presents  the  novel  and  unheard  of  spectacle,  of  a  public  officer, 
whose  business  it  was  to  frame  a  correct  bill,  openly  alleging  his  own 
inaccuracy  or  neglect,  as  a  reason  for  a  second  trial,  when  it  is  not 
pretended"^  that  the  merits  were  not  fairly  in  issue  on  the  first.  That  a 
party  shall  be  deprived  of  the  benefit  of  an  acquittal  by  a  jury,  on  a 
suggestion  of  this  kind,  coming  too  from  the  officer  who  drew  the  in- 
dictment, seems  not  to  comport  with  that  universal  and  humane  prin- 
ciple of  criminal  law,  '  that  no  man  shall  be  brought  into  danger  more 
than  once  for  the  same  offence.'  It  is  very  like  permitting  a  party  to 
take  advantage  of  his  own  wrong.  If  this  practice  be  tolerated,  when 
are  trials  of  tlie  accused  to  end?  If  a  conviction  take  place,  whether 
an  indictment  be  good,  or  otherwise,  it  is  ten  to  one  that  judgment 
passes ;  for,  if  he  read  the  bill,  it  is  not  probable  he  will  have  penetra- 
tion enough  to  discern  its  defects.  His  counsel,  if  any  be  assigned  to 
him,  will  be  content  with  hearing  the  substance  of  the  charge  withouV 
looking  farther ;  and  the  court  will  hardly,  of  its  own  accord,  think  it 
a  duty  to  examine  the  indictment  to  detect  errors  in  it.  Many  hun- 
dreds, perhaps,  are  now  in  the  state  prison  on  erroneous  indictments, 
who,  however,  have  been  fairly  tried  on  the  merits.  But  reverse  the 
case,  and  suppose  an  acquittal  to  take  place,  the  prosecutor,  if  he  be 
dissatisfied  and  bent  on  conviction,  has  nothing  to  do  but  to  tell  the 
court  that  his  own  indictment  was  good  for  nothing ;  that  it  has  no 
venue,  or  is  deficient  in  other  particulars,  and  that,  therefore,  he  has  a 
right  to  a  second  chance  of  convicting  the  prisoner,  and  so  on,  tottes 
quoties."     1  Johns.  74. 

In  Commonwealth  v.  Purchase,  2  Pick.  521,  526,  Chief  Justice 
Parker,  speaking  of  the  doctrine  which  allows  a  man  to  be  tried  again 
after  being  acquitted  on  an  indictment  substantially  bad,  said  that 
"  ingenuity  has  suggested  that  he  never  was  in  jeopardy,  because  it  is 
to  be  presumed  that  the  court  will  discover  the  defect  in  time  to  pre- 
vent judgment ;  "  but  that  this  "  is  bottomed  upon  an  assumed  infalli- 
bility of  the  courts,  which  is  not  admitted  in  any  other  case." 

In  the  Revised  Statutes  of  Massachusetts  of  1836,  c.  123,  §§  4,  5, 
provisions  were  inserted,  which,  as  the  commissioners  who  reported 
them  said,  were  "intended  to  define  and  determine,  as  far  as  may  be, 
the  cases  in  which  a  former  acquittal  shall,  or  shall  not,  be  a  bar  to  a 


976  UNITED    STATES    V.    BALL.  [CIIAP.    XVL 

subsequent  prosecution  for  the  same  offence  ; "  and  were  as  follows : 
"No  person  shall  be  held  to  answer  on  a  second  indictment,  for  any 
offence  of  which  he  has  been  acquitted  by  the  jury  upon  the  facts  and 
merits,  on  a  former  trial ;  but  such  acquittal  may  be  pleaded  by  him  in 
bar  of  any  subsequent  prosecution  for  the  same  offence,  notwithstand- 
ing any  defect  in  the  form  or  in  the  substance  of  the  indictment  on 
which  he  was  acquitted.  If  any  person,  who  is  indicted  for  an  offence, 
shall  on  his  trial  be  acquitted  upon  the  ground  of  a  variance  between 
the  indictment  and  the  proof,  or  upon  any  exception  to  the  form  or  to 
the  substance  of  the  indictment,  he  may  be  arraigned  again  on  a  new 
indictment,  and  may  be  tried  and  convicted  for  the  same  offence,  not- 
withstanding such  former  acquittal."  Similar  statutes  have  been  passed 
in  other  States.     1  Lead.  Crim.  Cas.  (2d  ed.)  532. 

The  American  decisions  in  which  the  English  doctrine  has  been  fol- 
lowed have  been  based  upon  the  English  authorities,  with  nothing  added 
by  way  of  reasoning. 

After  the  full  consideration  which  the  importance  of  the  question 
demands,  that  doctrine  appears  to  us  to  be  unsatisfactory  in  the 
grounds  on  which  it  proceeds,  as  well  as  unjust  in  its  operation 
upon  those  accused  of  crime  ;  and  the  question  being  now  for  the 
first  time  presented  to  this  court,  we  are  unable  to  resist  the  con- 
clusion that  a  general  verdict  of  acquittal  upon  the  issue  of  not 
guilty  to  an  indictment  undertaking  to  charge  murder,  and  not  ob- 
jected to  before  the  verdict  as  insufficient  in  that  respect,  is  a  bar  to  a 
second  indictment  for  the  same  killing. 

The  Constitution  of  the  United  States,  in  the  Fifth  Amendment,  de- 
clares, "  nor  shall  any  person  be  subject  to  be  twice  put  in  jeopardy  of 
life  or  limb."  The  prohibition  is  not  against  being  twice  punished,  but 
against  being  twice  put  in  jeopardy;  and  the  accused,  whether  convicted 
or  acquitted,  is  equally  put  in  jeopardy  at  the  first  trial.  An  acquittal 
before  a  court  having  no  jurisdiction  is,  of  course,  like  all  the  proceed- 
ings in  the  case,  absolutely  void,  and  therefore  no  bar  to  subsequent 
indictment  and  trial  in  a  court  which  has  jurisdiction  of  the  offence. 
Commonwealth  v.  Peters,  12  Met.  387  ;  2  Hawk.  P.  C.  c.  35,  §  3  ; 
1  Bishop's  Crim.  Law,  §  1028.  But  although  the  indictment  was  fatally 
defective,  yet,  if  the  court  had  jurisdiction  of  the  cause  and  of  the 
party,  its  judgment  is  not  void,  but  only  voidable  by  writ  of  error; 
and,  until  so  avoided,  cannot  be  collaterally  impeached.  If  the  judg- 
ment is  upon  a  verdict  of  guilty,  and  unreversed,  it  stands  good,  and 
warrants  the  punishment  of  the  defendant  accordingly,  and  he  could 
not  be  discharged  by  a  writ  of  habeas  corpus.  Ex  j^cirte  Parks,  93 
U.  S.  18.  If  the  judgment  is  upon  an  acquittal,  the  defendant,  indeed, 
will  not  seek  to  have  it  reversed ;  and  the  government  cannot.  United 
States  u  Sanges,  144  U.  S.  310.  But  the  fact  that  the  judgment  of  a 
court  having  jurisdiction  of  the  case  is  practically  final  affords  no 
reason  for  allowing  its  validity  and  conclusiveness  to  be  impugned  in 
another  case. 


SECT.  I.]  UNITED  STATES  V.    BALL.  977 

The  former  indictment  set  forth  a  charge  of  murder,  although  lacking 
the  requisite  fulness  and  precision.  The  verdict  of  the  jury,  after  a 
trial  upon  the  issue  of  guilty  or  not  guilty,  acquitted  Millard  Y.  Ball  of 
the  whole  charge,  of  murder,  as  well  as  of  any  less  offence  included 
therein.  Rev.  Stat.,  §  1035.  That  he  was  thereupon  discharged  by 
the  Circuit  Court  by  reason  of  his  acquittal  by  the  jury,  and  not 
by  reason  of  any  insufficiency  in  the  indictment,  is  clearly  shown  by 
the  fact  tliat  the  court,  by  the  same  order  which  discharged  him,  com- 
mitted the  other  defendants,  found  guilty  by  the  same  verdict,  to 
custody  to  await  sentence,  and  afterwards  adjudged  them  guilty  and 
sentenced  them  to  death  upon  that  indictment.  Millard  F.  Ball's 
acquittal  by  the  verdict  of  the  jury  could  not  be  deprived  of  its  legiti- 
mate effect  by  the  subsequent  reversal  by  this  court  of  the  judgment 
against  the  other  defendants  upon  the  writ  of  error  sued  out  by  them 
only. 

It  is  true  that  the  verdict  finding  John  C.  Ball  and  Robert  E.  Bout- 
well  guilty  as  charged  in  the  indictment,  and  finding  Millard  F.  Ball 
not  guilty,  was  returned  on  Sunday ;  as  well  as  that  the  order  there- 
upon made  by  the  court,  by  which  it  was  considered  that  the  first  two 
defendants  were  guilty  as  charged  in  the  indictment  and  found  by  the 
jury,  and  be  remanded  to  custody  to  await  the  judgment  and  sentence 
of  the  court,  and  that  Millard  F.  Ball  be  discharged  and  go  without 
day,  was  made  on  the  same  day.  That  order,  indeed,  as  already  ad- 
judged by  this  court,  could  not  have  effect  as  a  judgment  against  the 
two  defendants  who  had  been  convicted,  because  no  judgmeut  can 
lawfully  be  entered  on  Sunday.  Ball  v.  United  States,  140  U.  S.  118, 
131;  3  Bl.  Com.  277.  But  when  a  case  is  committed  to  the  jury  on 
Saturday,  their  verdict  may  be  received  and  the  jury  discharged  on 
Sunday.  This  has  been  generally  put  upon  the  ground  that  the  recep- 
tion of  the  verdict  and  discharge  of  the  jury  is  but  a  ministerial  act, 
involving  no  judicial  discretion  ;  or  that  it  is  an  act  of  necessity ;  and 
it  certainly  tends  to  promote  the  observance  of  the  day  more  than 
would  keeping  the  jury  together  until  Monday.  Hoghtaling  v.  Osborn, 
15  Johns.  119;  Van  Riper  y.  Van  Riper,  1  Southard  (4  N.  J.  Law), 
156 ;  Huidekoper  v.  Cotton,  3  Watts,  56  ;  Baxter  i\  People,  3  Oilman, 
368,  385  ;  Hiller  v.  English,  4  Strob.  486  ;  Cory  v.  Silcox,  5  Indiana, 
370 ;  Webber  v.  Merrill,  34  N.  H.  202  ;  Reid  y.  State,  53  Alabama, 
402;  Meece  v.  Commonwealth,  78  Kentucky,  586,  588;  State  y.  Ford, 
37  La.  Ann.  443,  466. 

As  to  the  defendant  who  had  been  acquitted  by  the  verdict  duly  re- 
turned and  received,  the  court  could  take  no  other  action  than  to  order 
his  discharge.  The  verdict  of  acquittal  was  final,  and  could  not  be 
reviewed,  on  error  or  otherwise,  without  putting  him  twice  in  jeopardy, 
and  thereby  violating  the  Constitution.  However  it  may  be  in  Eng- 
land, in  this  country  a  verdict  of  acquittal,  although  not  followed  by 
any  judgment,  is  a  bar  to  a  subsequent  prosecution  for  the  same  of- 
fence.    United  States  %\   Sauges,    144  U.  S.  310;    Commonwealth  v. 


978  BRENNAN    V.    THE    PEOPLE.  [CHAP.  XVI. 

Tuck,  20  Pick.  356,  365  ;  West  v.  State,  2  Zabriskie  (22  N.  J.  Law), 
212,  231 ;  1  Lead.  Crim.  Cas.  532. 

For  these  reasons,  the  verdict  of  acquittal  was  conclusive  in  favor 
of  Millard  F.  Ball ;  and  as  to  him  the  judgment  must  be  reversed,  and 
judgment  rendered  for  him  upon  his  plea  of  former  acquittal. 

It  therefore  becomes  unnecessary  to  consider  any  of  the  other  ques- 
tions raised  at  the  trial  which  affect  Millard  F.  Ball  only  ;  and  we  pro- 
ceed to  consider  those  affecting  the  other  defendants,  John  C.  Ball  and 
Robert  E.  Boutwell. 

Their  plea  of  former  conviction  cannot  be  sustained,  because  upon  a 
writ  of  error  sued  out  by  themselves  the  judgment  and  sentence  against 
them  were  reversed,  and  the  indictment  ordered  to  be  dismissed.  How 
far,  if  they  had  taken  no  steps  to  set  aside  the  proceedings  in  the 
former  case,  the  verdict  and  sentence  therein  could  have  been  held  to 
bar  a  new  indictment  against  them  need  not  be  considered,  because  it 
is  quite  clear  that  a  defendant,  who  procures  a  judgment  against  him 
upon  an  indictment  to  be  set  aside,  may  be  tried  anew  upon  the  same 
indictment,  or  upon  another  indictment,  for  the  same  offence  of  which 
he  had  been  convicted.  Hopt  v.  Utah,  104  U.  S.  631  ;  110  U.  S.  574; 
114  U.  S.  488;  120  U.  S.  430;  Regina  r.  Drury,  3  Cox  Crim.  Cas. 
544;  S.  C.  3  Car.  &  Kirw.  193;  Commonwealth  v.  Gould,  12  Gray, 
171.  The  court  therefore  rightly  overruled  their  plea  of  former  jeop- 
ardy ;  and  cannot  have  prejudiced  them  by  afterwards  permitting  them 
to  put  in  evidence  the  former  conviction,  and  instructing  the  jury  that 
the  plea  was  bad. 


BRENNAN   v.  THE  PEOPLE. 
Supreme  Court  of  Illinois.     1854. 

[Reported  15  Illinois,  SIL] 

Treat,  C.  J.^  An  indictment  for  the  murder  of  Albert  Story  was 
found  against  Kern  Brennan,  James  Tewey,  Michael  Tewey,  Martin 
Ryan,  and  eight  other  persons,  at  the  November  term,  1853,  of  the  La 
Salle  Circuit  Court.  The  defendants  were  arraigned  during  the  same 
term,  and  pleaded  not  guilty  to  the  indictment.  The  prisoners  were 
then  put  upon  their  trial.  The  jury  found  Kern  Brennan,  James  Tewey, 
and  Michael  Tewey  guilty  of  the  murder  of  Story.  They  also  found 
Martin  Ryan  guilty  of  manslaughter,  and  fixed  the  period  of  his  im- 
prisonment in  the  penitentiary  at  eight  years.  The  record  then  recites  : 
"Thereupon  come  the  defendants,  and  move  for  a  new  trial  herein; 
and  the  court  being  advised,  sustains  the  motion,  and  grants  a  new 
trial."  The  same  defendants  were  again  put  upon  their  trial  for  the 
murder  of  Story,  at  the  May  term,  1854.     The  jury  found  the  four 

1  Only  so  much  of  the  case  as  involves  the  question  of  double  jeopardy  is  given. 


SECT.   I.]  BRENNAN   V.   THE    PEOPLE.  979 

prisoners  guilty  of  murder,  and  sentence  of  death  was  passed  upon 
them. 

Was  the  prisoner,  Ryan,  properly  put  upon  his  trial  a  second  time 
for  the  murder  of  Story?  An  indictment  for  murder  embraces  the 
charge  of  manslaughter.  The  lesser  is  included  in  the  greater  accusa- 
tion. On  such  an  indictment,  the  jury  may  find  the  prisoner  guilty  of 
manslaughter.  And  such  a  finding  amounts  to  an  acquittal  of  the 
charge  of  murder.  The  finding  of  the  inferior  is  necessarily  a  discharge 
of  the  superior  offence.  Ryan  was  regularly  put  upon  his  trial  on  the 
indictment,  and  was  found  guilty  of  manslaughter.  In  contemplation 
of  law,  the  jury  rendered  two  verdicts  as  to  him  ;  one  acquitting  him  of 
the  murder  of  Story  ;  the  other  convicting  him  of  the  manslaughter  of 
Story.  He  was  thus  legally  tried  for  the  offence  of  murder  and  ac- 
quitted. It  is  perfectly  clear  that  he  could  not  again  be  put  in  jeopardy 
on  the  same  charge,  unless  that  acquittal  was  set  aside  at  his  instance- 
A  verdict  either  of  acquittal  or  conviction  is  a  bar  to  a  subsequent 
prosecution  for  the  same  offence,  although  no  judgment  has  been  en- 
tered upon  it.  Mount  v.  The  State,  14  Ohio,  205;  The  State  v.  Nor- 
vell,  2  Yerger,  24;  Hunt  v.  The  State,  25  Miss.  378.  It  does  not 
appear  from  the  record  that  Ryan  has  ever  waived  the  benefit  of  the 
verdict  of  acquittal.  It  is  true  that  he  united  with  the  other  prisoners 
in  asking  for  a  new  trial,  but  that  application  as  to  him  must  be  re- 
garded as  extending  only  to  the  charge  upon  which  he  was  convicted. 
He  had  no  occasion  for  another  trial,  except  as  to  the  charge  of  man- 
slaughter. Being  legally  acquitted  of  the  charge  of  murder,  he  surely 
did  not  desire  that  to  be  again  investigated.  It  is  not  to  be  presumed 
that  he  would  voluntarily  place  himself  in  peril  upon  a  charge,  on  which 
he  had  already  been  tried  and  acquitted.  Even  if  the  court,  upon  his 
motion,  could  open  the  whole  case,  the  record  does  not  show  that  such 
a  power  was  either  invoked  or  exercised.  The  application  for  a  new 
trial  did  not  necessarily  relate  to  the  charge  upon  which  he  was  ac- 
quitted. It  naturally  referred  to  the  charge  on  which  he  was  convicted. 
Nor  did  the  court,  in  terms,  set  aside  the  entire  finding  of  the  jury.  It 
simply  granted  the  prisoners  a  new  trial.  The  order  was  no  broader 
than  the  application.  There  were  two  distinct  findings  as  to  Ryan, 
and,  therefore,  there  was  not  the  least  necessity  for  disturbing  the  one 
acquitting  him  of  murder.  The  one  might  be  set  aside,  and  the  other 
be  allowed  to  stand.  The  verdict  was  not  an  entire  thing,  which  should 
wholly  stand  or  fall.  This  view  gives  full  effect  to  the  order  of  the 
court.  There  was  still  a  charge  upon  which  Ryan  could  be  again  tried. 
This  view  of  the  question  is  sustained  by  adjudged  cases.  The  case 
of  Campbell  v.  The  State,  9  Yerger,  333,  is  strongly  in  point.  The 
prisoner  was  tried  upon  an  indictment  containing  three  counts.  He 
was  acquitted  on  the  first  and  third  counts,  and  convicted  on  the 
second.  He  entered  a  motion  for  a  new  trial,  and  the  court,  in  sus- 
taining it,  set  aside  the  entire  finding  of  the  jury.  On  the  second  trial, 
he  objected  to  being  tried  on  the  counts  upon  which  he  had  been  ac- 


980  TRONO    V.    UNITED    STATES.  [CHAP.  XVI. 

quitted  ;  but  the  court  ordered  him  to  be  tried  on  the  whole  indictment. 
On  this  trial,  he  was  acquitted  on  the  first  and  second  counts,  and  con- 
victed on  the  third.     On   error,  it  was  held  that  he  was  entitled  to 
judgment  of  acquittal  upon  the  first  and  third  counts,  because  as  to 
them  he  was   legally  discharged  on  the  first  trial;  and  that  he  was 
entitled  to  the  same  judgment  on  the  second  count,  because  as  to  that 
he  was  acquitted  upon  the  second  trial.      The  court  remarked  :   "  It  is 
not  necessary  to  determine  how  far  a  party  could  be  held,  even  to  an 
express  waiver  of  the  benefit  of  a  verdict  of  acquittal.     It  is  enough, 
that  in  this  case  he  has  not  done  so.     He  moved  for  a  new  trial.     We 
are  not  to  suppose  his  application  was  more  extensive  than  his  neces- 
sities.    As  he  had  been  acquitted  upon  two  counts,  he  could  have  no 
motive  to  ask  for  another  trial,  except  upon  the  one  on  which  he  was 
found  guilty ;  and  we  are  not  to  understand  his  application  as  going 
further.     But  the  record  shows  that  the  judge,  in  granting  a  new  trial, 
set  aside  the  verdict.     This  was  error ;  it  improperly  revived  the  pro- 
ceedings upon  those  counts  upon  which  he  was  acquitted.     But  although 
they  were   improperly  revived,  it   was  error  to  try  the   defendant  a 
second  time  upon  them.     Having  been  once  tried  upon  all  the  counts 
and  acquitted  of  some  of  them,  to  try  him  again  upon  the  same  counts 
would  be  putting  him  in  jeopardy  a  second  time  for  the  same  charge." 
The  same  doctrine  is  recognized  in  the  cases  of  Slaughter  v.  The  State, 
6  Humph.  410;  Morris  ^\  The  State,  8  S.  &  M.  762  ;  and  Hunt  v.  The 
State,  25  Miss.  378. 

In  the  opinion  of  the  court,  Ryan  was  improperly  tried  a  second  time 
for  the  murder  of  Story.  He  had  previously  been  tried  for  that  offence, 
and  his  innocence  legally  established.  The  verdict  of  acquittal  re- 
mained in  full  force ;  and  he  could  not  again  be  put  in  jeopardy  on  the 
same  charge,  without  the  violation  of  an  express  provision  of  the 
constitution. 

The  judgment  as  to  Ryan  must  be  reversed,  and  the  cause  will  be 
remanded.  He  may  still  be  put  upon  his  trial  on  the  charge  of  man- 
slaughter. As  respects  the  other  prisoners,  the  judgment  must  be 
affirmed.  Judgment  affirmed. 


TRONO    V.   UNITED    STATES. 
Supreme  Court  of  the  United  States.     1905. 

[Reported  199  U.  S.  521.] 

The  plaintiffs  in  error  were  proceeded  against  in  the  court  of  first 
instance  of  the  province  of  Bulacan,  Philippine  Islands,  upon  a  com- 
plaint accusing  them  of  causing  the  death  of  Benito  Perez  "•  with  great 
cruelty  and  evident  premeditation  ...  by  means  of  blows  given  with 
the  butts  of  guns,  they  cooperating  one  with  the  other."     In  other 


SECT.   I.]  TRONO    V.    UNITED    STATES.  981 

words,  the  accused  were  complained  of  as  guilty  of  murder  in  the  first 
degree. 

They  were  tried  in  the  court  above  mentioned  and  were  acquitted  of 
the  crime  of  murder  and  convicted  of  the  crime  of  assault,  which  is  in- 
cluded in  the  crime  of  murder  charged  in  the  coniphiint,  and  they  were 
therefore  sentenced  by  the  court  to  suffer  a  penalty  of  six  months'  im- 
prisonment and  to  pay  a  certain  sum  to  the  heirs  of  Perez,  witii  sub- 
sidiary imprisonment  in  case  of  Insolvency. 

All  three  of  the  accused  appealed  to  the  Supreme  Court  of  the  Phil- 
ippine Islands  from  the  judgment  and  sentence  of  the  trial,  court.  The 
Supreme  Court,  having  heard  the  case,  reversed  the  judgment  of  the 
court  of  first  instance  and  convicted  the  accused  of  the  crime  of  homi- 
cide (iu  substance,  murder  in  the  second  degree),  which  is  included  in 
and  is  a  lower  degree  of  the  crime  charged  in  the  complaint,  but  is  a 
higher  degree  of  crime  than  that  of  which  the  accused  were  convicted 
in  the  court  below.  Two  of  them  (Angeles  and  Trono)  were  sentenced 
to  fourteen  years,  eight  months  and  one  day,  and  Natividad  to  impris- 
onment for  eight  years  and  one  day,  and  all  three  to  the  payment  of 
an  indemnity  to  the  heirs  of  the  deceased. 

The  accused  have  brought  the  case  here  by  writ  of  error  to  the  Su- 
preme Court  of  the  Philippine  Islands,  for  the  purpose  of  reviewing 
the  judgment  of  that  court. 

Peckham,  J.  The  plaintiffs  in  error  seek  a  reversal  of  the  judgment 
in  their  case  on  the  ground  that  the  Supreme  Court  of  the  Philippine 
Islands  had  no  power  to  reverse  the  judgment  of  the  court  of  first  in- 
stance, and  then  find  them  guilty  of  a  higher  crime  than  that  of  which 
they  had  been  convicted  in  that  court,  and  of  which  higher  crime  that 
court  had  acquitted  them,  and  they  contend  that  such  conviction  by 
the  Supreme  Court  of  the  Islands  was  a  violation  of  the  act  of  Con- 
gress, passed  July  1,  1902,  32  Stat.  691,  a  portion  of  the  fifth  section 
of  that  act  providing  that  "  no  person  for  the  same  offence  shall  be 
twice  put  in  jeopardy  of  punishment." 

This  language  is  to  be  found  in  connection  with  other  language  in 
the  same  act,  providing  for  the  rights  of  a  person  accused  of  crime  in 
the  Philippine  Islands.  The  whole  language  is  substantially  taken 
from  the  Bill  of  Rights  set  forth  in  the  Amendments  to  the  Constitu- 
tion of  the  United  States,  omitting  the  provisions  in  regard  to  the 
right  of  trial  by  jury  and  the  right  of  the  people  to  bear  arms,  and  con- 
taining the  prohibition  of  the  Thirteenth  Amendment,  and  also  pro- 
hibiting the  passage  of  bills  of  attainder  and  ex  post  facto  laws. 

The  important  question  to  be  determined  is,  whether  this  action  of 
the  Supreme  Court  of  the  Islands  did  violate  the  act  of  Congress,  by 
placing  the  accused  twice  in  jeopardy. 

The  meaning  of  the  phrase,  as  used  in  the  above-mentioned  act  of 
Congress,  was  before  this  court  in  Kepner  v.  United  States,  decided  in 
May,  1904,  195  U.  S.  100,  where  will  be  found  a  very  full  discussion  of 
the  subject.    The  plaintiff  in  error  in  that  case  had  been  acquitted  of  the 


982  TRONO    V.    UNITED    STATES.  [CHAP.   XVI. 

crime  charged  against  him  in  the  court  of  first  instance,  but  the  Gov- 
ernment, not  being  satisfied  with  the  decision,  appealed  to  the  Supreme 
Court,  and  that  court  reversed  the  judgment  of  acquittal  and  found 
Kepner  guiltj^  of  the  crime  of  which  the  court  of  first  instance  had  ac- 
quitted him,  and  sentenced  him  to  a  term  of  imprisonment,  and  sus- 
pended him  from  any  public  office  or  public  trust,  and  deprived  him 
of  the  right  of  suffrage.  This  court,  upon  writ  of  error,  held  that,  in 
reversing  upon  the  appeal  of  the  Government,  the  judgme^it  of  the 
court  of  first  instance,  and  itself  convicting  the  accused  and  pronounc- 
ino-  judgment  against  him,  the  Supreme  Court  of  the  Islands  violated 
the  provision  in  question,  and  its  judgment  was  therefore  reversed  and 
the  prisoner  discharged.  It  was  also  held  that  the  Government  had  no 
power  to  obtain  a  review  of  a  judgment  or  decision  of  the  trial  court 
acquitting  an  accused  party,  and  that  the  phrase  in  question  was  to 
be  construed  as  the  same  phrase  would  be  construed  in  the  instru- 
ment from  which  it  was  originally  taken,  viz.,  the  Constitution  of 
the  United  States,  and  that  the  settled  and  well-known  meaning  of  the 
language,  as  used  in  the  Constitution,  must  also  be  taken  when  the 
same  language  is  used  in  the  act  of  Congress,  and  not  as  it  might  pos- 
sibly be  construed  with  reference  to  Spanish  law  or  Spanish  procedure. 

The  difference  between  that  case  and  the  one  now  before  the  court 
is  obvious.  Here  the  accused,  while  acquitted  of  the  greater  offence 
charged  in  the  complaint,  were  convicted  of  a  lesser  offence  included  in 
the  main  charge.  They  appealed  from  the  judgment  of  the  court  of  first 
instance  and  the  Government  had  no  voice  in  the  matter  of  the  appeal, 
it  simply  followed  them  to  the  court  to  which  they  appealed.  We  re- 
gard that  fact  as  material  and  controlling.  The  difference  is  vital 
between  an  attempt  by  the  Government  to  review  the  verdict  or  deci- 
sion of  acquittal  in  the  court  of  first  instance  and  the  action  of  the  ac- 
cused person  in  himself  appealing  from  the  judgment  and  asking  for 
its  reversal,  even  though  that  judgment,  while  convicting  him  of  the 
lower  offence,  acquits  him  of  the  higher  one  charged  in  the  complaint. 

We  may  regard  the  question  as  thus  presented  as  the  same  as  if  it 
arose  in  one  of  the  Federal  courts  in  this  country,  where,  upon  an  in- 
dictment for  a  greater  offence,  the  jury  had  found  the  accused  not 
guilty  of  that  offense,  but  guilty  of  a  lower  one  which  was  included  in 
it,  and  upon  an  appeal  from  that  judgment  by  the  accused  a  new  trial 
had  been  granted  by  the  appellate  court,  and  the  question  was  whether, 
upon  the  new  trial  accorded,  the  accused  could  be  again  tried  for  the 
greater  offence  set  forth  in  the  indictment,  or  must  the  trial  be  confined 
to  that  offence  of  which  the  accused  had  previously  been  convicted, 
and  which  conviction  had,  upon  his  own  motion,  been  set  aside  and 
reversed  by  the  higher  court. 

This  question  has  given  rise  to  much  diversity  of  opinion  in  the 
various  state  courts.  Many  of  them  have  held  that  the  new  trial  must 
be  confined  to  the  lesser  offence  of  which  the  accused  had  been  con- 
victed on  the  first  trial,  while  other  courts  have  held  precisely  the  con- 


SECT.   I.j  TRONO   V.    UNITED   STATES.  983 

trary,  and  that  upon  a  new  trial  the  whole  case  was  open  as  if  there 
had  been  no  former  trial.  Most,  if  not  all,  of  these  two  classes  of 
cases  have  been  cited  by  the  respective  counsel  in  this  case  and  will  be 
found  in  their  briefs  herein.  It  would  be  unprofitable  to  cite  and  refer 
to  each  of  thein  in  detail  here.     They  have  been  carefully  examined. 

Those  cases  which  limit  the  new  trial  proceed  upon  the  ground,  as 
stated  in  People  v.  Bowling,  84  N.  Y.  478,  483,  by  Folger,  Chief 
Judge,  as  follows : 

"The  matter  at  the  bottom  is  the  constitutional  provision  that  'No 
person  shall  be  subject  to  be  twice  put  in  jeopardy  for  the  same  of- 
fence' (Const,  of  N.  Y.,  Art.,  1,  par.  6),  and  yet  new  trials  are  granted 
in  criminal  cases  on  the  motion  of  the  accused,  and  if  he  gets  a  new 
trial  he  is  thus  subject  to  be  twice  put  in  jeopardy.  This  is  done  on  the 
ground,  that  by  asking  for  a  correction  of  errors  made  on  the  first 
trial,  he  does  waive  his  constitutional  protection,  and  does  himself  ask 
for  a  new  trial,  though  it  brings  him  twice  in  jeopardy.  But  that 
waiver,  unless  it  be  expressly  of  the  benefit  of  the  verdict  of  acquittal, 
goes  no  further  than  the  accused  himself  extends  it.  His  application 
for  a  correction  of  the  verdict  is  not  to  be  taken  as  more  extensive 
than  his  needs.  He  asks  a  correction  of  so  much  of  the  judgment  as 
convicted  him  of  guilt.  He  is  not  to  be  supposed  to  ask  correction  or 
reversal  of  so  much  of  it  as  acquitted  him  of  offence.  He,  therefore, 
waives  his  privilege  as  to  one,  and  keeps  it  as  to  the  other.  It  is  upon 
this  principle,  that  where,  by  a  verdict  of  guilty  on  one  count  or  for 
one  offence,  and  an  acquittal  on  or  for  another,  there  has  been  a  par- 
tial conviction  on  an  indictment,  and  on  writ  of  error  there  has  been  a 
reversal  of  the  conviction,  the  acquittal  still  stands  good,  and  is,  as  to 
that  count  or  offense,  a  bar.  As  to  that,  the  plea  of  autrefois  acquit  can 
be  upheld,  though  the  plea  of  autrefois  convict  cannot  be  upheld  as  to  the 
offence  of  which  the  verdict  was  guilty.  The  waiver  is  construed  to 
extend  only  to  the  precise  thing  concerning  which  the  relief  is 
sought." 

But  in  the  subsequent  case  of  People  v.  Palmer,  109  N.  Y.  413,  419, 
the  effect  of  the  statute  of  New  York,  known  as  sections  464  and  544 
of  the  Code  of  Criminal  Procedure,  was  under  consideration.  Those 
sections  enacted  as  follows  : 

"  Sec.  464.  The  granting  of  a  new  trial  places  the  parties  in  the 
same  position  as  if  no  trial  had  been  had.  ..." 

<'  Sec.  544.  When  a  new  trial  is  ordered,  it  shall  proceed  in  all  re- 
spects as  if  no  trial  had  been  had." 

The  statute  was  held  valid,  and  that  it  did  not  violate  the  constitu- 
tutional  provision  against  subjecting  a  person  to  be  twice  put  in  jeop- 
ardy for  the  same  offence,  as  the  jeopardy  was  incurred  with  the  con- 
sent of  and  as  a  privilege  granted  to  the  defendant  upon  his  application. 

And  generally,  it  may  be  said  that  the  cases  holding  that  a  new  trial 
is  not  limited  in  the  manner  spoken  of  proceed  upon  the  ground  that  in 
appealing  from  the  judgment  the  accused  necessarily  appeals  from  the 


984  TRONO    V.    UNITED    STATES.  [CHAr.    XVI. 

whole  thereof,  as  well  that  which  acquits  as  that  which  condemns; 
that  the  judgment  is  one  entire  thing,  and  that  as  he  brings  up  the 
whole  record  for  review  he  thereby  waives  the  benefit  of  the  provision 
in  question,  for  the  purpose  of  attempting  to  gain  what  he  thinks  is  a 
greater  benefit,  viz.,  a  review  and  reversal  by  the  higher  court  of  the 
judgment  of  conviction.  Although  the  accused  was,  as  is  said,  placed 
in  jeopardy  upon  the  first  trial,  in  regard  not  only  to  the  offence  of 
which  he  was  accused,  but  also  in  regard  to  the  lesser  grades  of  that 
offence,  yet  by  his  own  act  and  consent,  by  appealing  to  the  higher 
court  to  obtain  a  reversal  of  the  judgment,  he  has  thereby  procured  it 
to  be  set  aside,  and  when  so  set  aside  and  reversed  the  judgment  is 
held  as  though  it  had  never  been.  This  was  in  substance  decided  in 
United  States  v.  Harding  et  a?.,  tried  in  the  United  States  Circuit 
Court  in  1846,  26  Fed.  Cas.  131,  before  Mr.  Justice  Grier,  then  a 
member  of  this  court,  and  this  is  the  ground  substantially  upon  which 
the  decisions  of  the  other  courts  are  placed. 

In  Kring  r.  Missouri,  107  U.  S.  221,  it  was  stated  by  Mr.  Justice 
Miller,  who  delivered  the  opinion  of  the  court,  that  it  was  admitted 
that  by  the  law  of  Missouri,  as  it  stood  at  the  time  of  the  homicide,  the 
prisoner  having  been  convicted  of  murder  in  the  second  degree  upon  an 
indictment  charging  him  with  murder  in  the  first  degree,  if  that  convic- 
tion was  set  aside  he  could  not  again  be  tried  for  murder  in  the  first 
degree.  That  law  was  in  force  at  the  date  of  the  homicide  for  which 
Kring  was  sentenced  to  death,  but  it  was  subsequently,  and  before 
his  retrial,  changed  so  as  to  deprive  him  of  the  benefit  to  which  he 
would  otherwise  have  been  entitled,  and  this  court  held  that  that  change 
was,  as  to  him,  ex  post  facto  and  void.  It  was  also  said  by  the  court  that 
there  was  "  no  question  of  the  right  of  the  State  of  Missouri,  either  by 
her  fundamental  law  or  by  an  ordinary  act  of  legislation,  to  abolish  this 
rule,  and  that  it  is  a  valid  law  as  to  all  offences  committed  after  its  en- 
actment. The  question  here  is,  Does  it  deprive  the  defendant  of  any 
right  of  defence  which  the  law  gave  him  when  the  act  was  committed 
so  that  as  to  that  offence  it  is  ex  post  facto  V  This  court  answered 
that  question  in  the  affirmative. 

In  our  opinion  the  better  doctrine  is  that  which  does  not  limit  the 
court  or  jury,  upon  a  new  trial,  to  a  consideration  of  the  question  of 
guilt  of  the  lower  offence  of  which  the  accused  was  convicted  on  the 
first  trial,  but  that  the  reversal  of  the  judgment  of  conviction  opens  up 
the  whole  controversy  and  acts  upon  the  original  judgment  as  if  it  had 
never  been.  The  accused  by  his  own  action  has  obtained  a  reversal  of 
the  whole  judgment,  and  we  see  no  reason  why  he  should  not,  upon  a 
new  trial,  l3e  proceeded  against  as  if  no  trial  had  previously  taken  place. 
We  do  not  agree  to  the  view  that  the  accused  has  the  right  to  limit  his 
waiver  as  to  jeopardy,  when  he  appeals  from  a  judgment  against  him. 
As  the  judgment  stands  before  he  appeals,  it  is  a  complete  bar  to  any 
further  prosecution  for  the  offence  set  forth  in  the  indictment,  or  of 
any  lesser  degree  thereof.     No  power  can  wrest  from  him  the  right  to 


SECT.    I.]  TRONO    V.   UNITED    STATES.  985 

SO  use  that  judgment,  but  if  he  chooses  to  appeal  from  it  and  to  ask 
for  its  reversal  he  thereby  waives,  if  successful,  his  right  to  avail  him- 
self of  the  former  acquittal  of  the  greater  offence,  contaiued  in  the 
judgment  which  he  has  himself  procured  to  be  reversed. 

It  is  urged,  however,  that  he  has  no  power  to  waive  such  a  right, 
and  the  case  of  Ilopt  v.  Utah,  110  U.  S.  574,  is  cited  as  authority  for 
that  view.  We  do  not  so  regard  it.  This  court  held  in  that  case  that 
in  the  Territory  of  Utah  the  accused  was  bound,  by  provisions  of  the 
Utah  statute,  to  be  present  at  all  times  during  the  trial,  and  that  it 
was  not  within  the  power  of  the  accused  or  his  counsel  to  dispense  with 
such  statutory  requirement.  But  on  an  appeal  from  a  judgment  of 
this  nature  there  must  be  a  waiver  to  some  extent  on  the  part  of  the 
accused  when  he  appeals  from  such  judgment.  When  the  first  trial  is 
entered  upon  he  is  then  put  in  jeopardy  within  the  meaning  of  the 
phrase,  and  yet  it  has  been  held,  as  late  as  United  States  v.  Ball,  163 
U.  S.  662,  671  (and  nobody  now  doubts  it),  that  if  the  judgment  of 
conviction  be  reversed  on  his  own  appeal,  he  cannot  avail  himself  of 
the  once-in-jeopardy  provision  as  a  bar  to  a  new  trial  of  the  offence  of 
which  he  was  convicted.  And  this  is  generally  put  upon  the  ground 
that  by  appeal  he  waives  his  right  to  the  plea,  and  asks  the  court  to 
award  him  a  new  trial,  although  its  effect  will  be,  if  granted,  that  he 
will  be  again  tried  for  the  offense  of  which  he  has  been  once  convicted. 
This  holding  shows  that  there  can  be  a  waiver  of  the  defence  by  reason 
of  the  action  of  the  accused.  As  there  is,  therefore,  a  waiver  in  any 
event,  and  the  question  is  as  to  its  extent  (that  is,  how  far  the  accused 
by  his  own  action  may  be  deemed  to  have  waived  his  right),  it  seems 
much  more  rational  and  in  better  accord  with  the  proper  administra- 
tion of  the  criminal  law  to  hold  that,  by  appealing,  the  accused  waives 
the  right  to  thereafter  plead  once  in  jeopardy,  when  he  has  obtained  a 
reversal  of  the  judgment,  even  as  to  that  part  of  it  which  acquitted 
him  of  the  higher  while  convicting  him  of  the  lower  offence.  When  at 
his  own  request  he  has  obtained  a  new  trial  he  must  take  the  burden 
with  the  benefit,  and  go  back  for  a  new  trial  of  the  whole  case.  It 
does  not  appear  to  us  to  be  a  practice  founded  on  solid  reason  to  per- 
mit such  a  limited  waiver  by  an  accused  party,  while  himself  asking 
for  a  reversal  of  the  judgment. 

There  is  also  the  view  to  be  taken  that  the  constitutional  provision 
was  really  never  intended  to,  and,  properly  construed,  does  not  cover, 
the  case  of  a  judgment  under  these  circumstances,  which  has  been 
annulled  by  the  court  at  the  request  of  the  accused,  and  there  is, 
therefore,  no  necessity  of  relying  upon  a  waiver,  because  the  correct 
construction  of  the  provision  does  not  make  it  applicable. 

A  further  question  is  made  as  to  the  power  of  the  Supreme  Court  of 
the  Islands  to  reverse  the  judgment  appealed  from  and  itself  convict 
the  accused  on  appeal.  The  Supreme  Court,  in  so  doing,  acted  within 
its  power  of  jurisdiction.  It  is  a  result  of  the  ordinary  procedure  in 
the  courts  of    that   country,   proceeding    under  the  act    of  Congress 


986  SIMMONS    V.    UNITED    STATES,  [cHAP.  XVI. 

already  referred  to.      See  statement  of  the  procedure  in  the  case  here- 
tofore cited,  Kepner  r.  United  States,  195  U.  S.  100. 

The  judgment  of  the  Supreme  Court  of  the  Philippine  Islands  is 
right,  and  it  is  Affirmed} 


SIMMONS  V.  UNITED  STATES. 
Supreme  Court  of  the  United  States.     1891. 

[Reported  142  U.  S.  148.] 

Gray,  J.^     The  general  rule  of  law  upon  the  power  of  the  court  to 

discharge  the  jury  in  a  criminal  case  before  verdict,  was  laid  down  by 
this  court  more  than  sixty  years  ago,  in  a  case  presenting  the  question 
whether  a  man  charged  with  a  capital  crime  was  entitled  to  be  dis- 
charged because  the  jury,  being  unable  to  agree,  had  been  discharged, 
without  his  consent,  from  giving  any  verdict  upon  the  indictment.  The 
court,  speaking  by  Mr.  Justice  Story,  said  :  "  We  are  of  opinion  that 
the  facts  constitute  no  legal  bar  to  a  future  trial.  The  prisoner  has 
not  been  convicted  or  acquitted,  and  may  again  be  put  upon  his  de- 
fence. We  think  that,  in  all  cases  of  this  nature,  the  law  has  invested 
courts  of  justice  with  the  authority  to  discharge  a  jury  from  giving  any 
verdict,  whenever  in  their  opinion,  taking  all  the  circumstances  into 
consideration,  there  is  a  manifest  necessity  for  the  act,  or  the  ends  of 
public  justice  would  otherwise  be  defeated.  They  are  to  exercise  a 
sound  discretion  on  the  subject ;  and  it  is  impossible  to  define  all  the 
circumstances  which  would  render  it  proper  to  interfere.  To  be  sure, 
the  power  ought  to  be  used  with  the  greatest  caution,  under  urgent 
circumstances,  and  for  very  plain  and  obvious  causes ;  and,  in  capital 
cases  especially,  courts  should  be  extremely  careful  how  they  interfere 
with  any  of  the  chances  of  life  in  favor  of  the  prisoner.  But,  after  all, 
they  have  the  right  to  order  the  discharge  ;  and  the  security  which  the 
public  have  for  the  faithful,  sound  and  conscientious  exercise  of  this 
discretion  rests,  in  this,  as  in  other  cases,  upon  the  responsibility  of 
the  judges,  under  their  oaths  of  office."  United  States  v.  Perez,  9 
Wheat.  579. 

A  recent  decision  of  the  Court  of  Queen's  Bench,  made  upon  a  full 
review  of  the  English  authorities,  and  affirmed  in  the  Exchequer  Cham- 
ber, is  to  the  same  effect.  Winsor  v.  The  Queen,  L.  R.  1  Q.  B.  289, 
390 ;  s.  c.  6  B.  &  S.  143,  and  7  B.  &  S.  490. 

There  can  be  no  condition  of  things  in  which  the  necessity  for  the 
exercise  of  this  power  is  more  manifest,  in  order  to  prevent  the  defeat 
of  the  ends  of  public  justice,  than  when  it  is  made  to  appear  to  the 

1  Holmes,  .J.,  concurred  in  the  result.  Fuller,  C.  J.,  and  Harlan,  White,  and 
McKenna,  JJ.,  dissented. —  Ed. 

2  Part  of  the  opinion  only  is  given  ;  it  states  the  case.  —  Ed. 


SECT.    I.]  VANDERCOMB'S   CASE.  987 

court  that,  either  by  reason  of  facts  existing  when  tTie  jurors  were 
sworn,  but  not  then  disclosed  or  known  to  the  court,  or  by  reason  of 
outside  influences  brought  to  bear  on  the  jury  pending  the  trial,  the 
jurors  or  any  of  them  are  subject  to  such  bias  or  prejudice  as  not  to 
stand  impartial  between  the  government  and  the  accused.  As  was  well 
said  by  Mr.  Justice  Curtis  in  a  case  very  like  that  now  before  us,  "  It 
is  an  entire  mistake  to  confound  this  discretionary  authority  of  the 
court,  to  protect  one  part  of  the  tribunal  from  corruption  or  prejudice, 
with  the  right  of  challenge  allowed  to  a  party.  And  it  is,  at  least, 
equally  a  mistake  to  suppose  that,  in  a  court  of  justice,  either  party  can 
have  a  vested  right  to  a  corrupt  or  prejudiced  juror,  who  is  not  fit  to 
sit  in  judgment  in  the  case."  United  States  v.  Morris,  1  Curtis  C.  C. 
23,  37. 

Pending  the  first  trial  of  the  present  case,  there  was  brought  to  the 
notice  of  the  counsel  on  both  sides,  and  of  the  court,  evidence  on  oath 
tending  to  show  that  one  of  the  jurors  had  sworn  falsely  on  his  voir  dire 
that  he  had  no  acquaintance  with  the  defendant ;  and  it  was  undisputed 
that  a  letter,  since  written  and  published  in  the  newspapers  by  the 
defendant's  counsel,  commenting  upon  that  evidence,  had  been  read  by 
that  juror  and  by  others  of  the  jury.  It  needs  no  argument  to  prove 
that  the  judge,  upon  receiving  such  information,  was  fully  justified  in 
concluding  that  such  a  publication,  under  the  peculiar  circumstances 
attending  it,  made  it  impossible  for  that  jury,  in  considering  the  case, 
to  act  with  the  independence  and  freedom  on  the  part  of  each  juror 
requisite  to  a  fair  trial  of  the  issue  between  the  parties.  The  judge 
having  come  to  that  conclusion,  it  was  clearly  within  his  authority  to 
order  the  jury  to  be  discharged,  and  to  put  the  defendant  on  trial  by 
another  jury ;  and  the  defendant  was  not  thereby  twice  put  in  jeopardy, 
within  the  meaning  of  the  Fifth  Amendment  to  the  Constitution  of  th«. 
United  States. 


VANDERCOMB'S   CASE. 
Crown  Case  Reserved.     1796. 

[Reported  2  Leach  {4th  ed.)  708.] 

Mb.  Justice  Buller,  in  June  Session,  1796,  after  stating  the  plead- 
ings, delivered  the  opinion  of  the  Judges  upon  this  case.^  This  is  a 
demurrer  to  a  special  plea  of  cmtrefois  acquit  in  bar  of  an  indictment 
for  a  burglary  with  intent  to  commit  a  felony.  The  question  raised  by 
this  demurrer  has  been  argued  before  all  the  Judges  of  England.  On 
that  argument  it  was  contended  on  behalf  of  the  prisoners,  that  as  the 
dwelling-house  in  which,  and  the  time  when,  the  burglary  is  charged  to 
have  been  committed  are  precisely  the  same  both  in  the  indictment  for 
the  burglary  and  stealing  the  goods,  on  which  the  prisoners  were  ac- 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


988  vandercomb's  case.  [chap.  xvi. 

quitted,  and  in  the  Indictment  for  the  burglary  with  intent  to  steal  the 
goods,  which  is  now  depending,  the  offence  charged  in  both  is  in  con- 
templation of  law  the  same  offence,  and  that  of  course  the  acquittal  on 
the  former  indictment  is  a  bar  to  all  further  proceeding  on  the  latter. 
To  support  this  proposition  two  cases  in  Kelyng's  Reports  were  relied 
on.  It  is  quite  clear  that  at  the  time  the  felony  was  committed  there 
was  only  one  act  done,  namely,  the  breaking  the  dwelling-house.  But 
this  fact  alone  will  not  decide  this  case  ;  for  burglary  is  of  two  sorts : 
first,  breaking  and  entering  a  dwelling-house  iu  the  night  time,  and 
stealing  goods  therein ;  secondly,  breaking  and  entering  a  dwelling- 
house  in  the  night  time,  with  intent  to  commit  a  felony,  although  the 
meditated  felony  be  not  in  fact  committed.  The  circumstance  of 
breaking  and  entering  the  house  is  common  and  essential  to  botlj  the 
species  of  this  offence ;  but  it  does  not  of  itself  constitute  the  crime  in 
either  of  them  ;  for  it  is  necessary  to  the  completion  of  burglary  that 
there  should  not  only  be  a  breaking  and  entering,  but  the  breaking  and 
entering  must  be  accompanied  with  a  felony  actually  committed  or 
intended  to  be  committed;  and  these  two  offences  are  so  distinct  in 
their  nature,  that  evidence  of  one  of  them  will  not  support  an  indict- 
ment for  the  other.  In  the  present  case,  therefore,  evidence  of  the 
breaking  and  entering  with  intent  to  steal,  was  rightly  held  not  to  be 
sufficient  to  support  the  indictment,  charging  the  prisoner  with  having 
broke  and  entered  the  house,  and  stolen  the  goods  stated  in  the  first 
indictment;  and  if  crimes  are  so  distinct  that  evidence  of  the  one  will 
not  support  the  other,  it  is  as  inconsistent  with  reason  as  it  is  repug- 
nant to  the  rules  of  law  to  say  that  they  are  so  far  the  same  that  an 
acquittal  of  the  one  shall  be  a  bar  to  a  prosecution  for  the  other.  ^ 

These  cases  establish  the  principle  that  unless  the  first  indictment 
were  such  as  the  prisoner  might  have  been  convicted  upon  by  proof  of 
the  facts  contained  in  the  second  indictment,  au  acquittal  on  the  first 
indictment  can  be  no  bar  to  the  second.  Now,  to  apply  the  principle 
of  these  cases  to  the  present  case :  The  first  indictment  was  for  bur- 
glariously breaking  and  entering  the  house  of  Miss  Neville  and  stealing 
the  goods  mentioned  ;  but  it  appeared  that  the  prisoner  broke  and 
entered  the  house  with  intent  to  steal,  for  in  fact  no  larceny  was  com- 
mitted, and  therefore  they  could  not  be  convicted  on  that  indictment ; 
but  they  have  not  been  tried  for  burglariously  breaking  and  entering 
Miss  Neville's  house  with  intent  to  steal,  which  is  the  charge  in  the 
present  indictment,  and  therefore  their  lives  have  never  been  in  jeopardy 
for  this  offence.  For  this  reason  the  Judges  are  all  of  opinion  that  the 
plea  is  bad ;  that  there  must  be  judgment  for  the  prosecutor  upon  the 
demurrer ;  and  that  the  prisoners  must  take  their  trials  on  the  present 
indictment. 

1  His  Lordship  then  examined  the  following  authorities :  Turner's  case,  Kelyng, 
30 ;  Jones  and  Bever's  case,  Kelyng,  52 ;  2  Hawk.  P.  C.  c.  3.5,  sect.  3 ;  Foster  C.  L. 
361;  Rex  v.  Pedley,  1  Leach  (4th  ed.),  242. 


SECT.    I.]  REGINA   V.    CALVI.  989 


REX  V.   PLANT. 
Chester  Assizes.     1836. 

[Reported  7  C.Sr  P.  575.] 

Murder.  —  The  prisoners  were  tried  for  the  murder  of  Edward 
Plant,  a  child  of  the  female  prisoner,  by  poisoning  him.  In  some  ol 
the  counts  of  the  indictment  both  prisoners  were  charged  as  joint  prin- 
cipals in  the  actual  murder  :  and  in  others  Louisa  Plant  was  charged 
with  the  actual  murder,  the  other  prisoner  being  charged  as  present, 
aiding  and  abetting. 

It  appeared  that  the  two  prisoners  co-habited  together,  and  that 
both  went  towards  a  druggist's  shop,  when  he  gave  something  into  her 
hand,  and  she  went  into  the  shop  and  bought  the  poison ;  and,  on  com- 
ing out,  gave  something  to  the  male  prisoner.  It  further  appeared 
that  the  female  prisoner,  about  a  fortnight  after  this,  took  the  deceased 
up  stairs  and  gave  him  the  poison,  the  male  prisoner  being  in  the  back- 
yard of  the  house  at  the  time. 

Upon  this  indictment  the  female  prisoner  was  convicted,  and  the 
male  prisoner  acquitted,  on  the  ground  that  he  was  not  present  with  the 
other  prisoner  at  the  time  of  the  murder,  and  that  he  was  on  this  evi- 
dence an  accessory  before  the  fact. 

The  prisoners  were  again  indicted ;  the  female  prisoner  as  a  princi- 
pal in  the  murder,  and  the  male  prisoner  as  an  accessory  before  the 
fact.  To  this  indictment  the  prisoner  Birchenough  pleaded  his  acquittal 
on  the  former  indictment:  to  this  plea  there  was  a  demurrer. 

Cottingham,  for  the  prisoner  Birchenough,  submitted,  that  a  person 
who  had  been  tried  as  a  principal  in  a  case  of  felony,  and  acquitted, 
could  not  be  tried  as  an  accessory  before  the  fact  to  the  same  felony, 
and  cited  1  Hale  P.  C.  626,  and  2  Hale  P.  C.  244. 

Lord  Denman,  C.  J.,  held  that  the  plea  of  former  acquittal  was  no 
bar  to  the  present  indictment,  and  that  the  prisoner  Birchenough  must 
take  his  trial ;  but  his  Lordship  reserved  the  point  for  the  consideration 
of  the  Judges.  . 

The  jury  on  this  indictment  found  both  the  prisoners  guilty. 


REGINA  V.   CALVI. 
Central  Criminal  Court.     1857. 

[Reported  10  Cox  C.  C.  481n.] 

Antonio  De  Salvi  was  indicted  for  the  wilful  murder  of  Robert 
Henderson  Robertson. 

A  plea  of  autrefois  acquit  was  pleaded,  to  which  the  Crown  demurred. 


990  EEGINA  V.    CALVI.  [cHAP.  XVI. 

Pollock,  G.  B.  —  We  are  of  opinion  that  this  is  not  a  good  plea. 
The  prisoner  is  now  indicted  for  murder,  and  murder  may  be  committed 
without  any  intent  to  kill.  If  a  man  intends  to  maim  and  causes  death, 
and  it  can  be  made  out  most  distinctly  that  he  did  not  mean  to  kill, 
yet  if  he  does  acts  and  uses  means  for  the  purpose  of  accomplishing 
that  limited  object,  and  they  are  calculated  to  produce  death  and  death 
ensues,  by  the  law  of  England  that  is  murder,  although  the  man  did 
not  mean  to  kill.  On  the  former  occasion  the  prisoner  was  charged 
with  wounding  with  intent  to  kill.  The  jury  found  that  he  did  not 
intend  to  kill,  and  there  the  intention  was  of  the  essence  of  the  crime ; 
that  is  not  so  in  the  present  indictment ;  it  is  not  necessary  here  to 
prove  an  intention  to  kill,  it  is  only  necessary  to  prove  an  intention 
to  inflict  an  injury  that  might  be  dangerous  to  life,  and  that  it  resulted 
in  death ;  that  is  sufficient  to  sustain  the  present  charge.  Try  this 
by  the  very  test  presented  to  us.  It  is  said  that  it  is  no  bar  to  the 
second  indictment  that  a  party  has  been  acquitted  on  the  first  unless 
the  facts  proved  on  the  second  indictment  might  have  produced  a 
conviction  on  the  first.  But  a  party  may  be  convicted  upon  an  indict- 
ment for  murder  by  evidence  that  would  have  no  tendency  to  prove 
that  there  was  any  intent  to  kill,  nay,  by  evidence  that  might  clearly 
show  he  meant  to  stop  short  of  death,  and  even  took  some  means 
to  prevent  death,  but  if  that  illegal  act  of  his  produces  death,  that 
is  murder.  Two  authorities  have  been  cited  with  reference  to  an 
acquittal  or  a  conviction  in  a  police  court :  one  of  them  was  a  case 
before  Mr.  Justice  Coltman,  which  turned  entirely  upon  the  particular 
statute  (9  Geo.  4,  c.  91,  s.  28)  ;  and  as  to  the  case  in  5  Law  Chronicle, 
it  is  evident  that  that  proceeded  upon  some  statute  applicable  to  Scot- 
land, or  if  it  did  not,  I  entirely  dissent  from  the  doctrine  there  laid 
down.  The  only  suggestion  that  raised  for  a  moment  a  doubt  in  my 
mind  was  to  the  effect  that  an  acquittal  of  an  assault  with  intent  to  kill 
was  an  acquittal  both  of  the  assault  and  of  the  intent ;  but  I  think  that 
is  not  so.  The  acquittal  of  the  whole  offence  is  not  an  acquittal  of 
every  part  of  it,  it  is  only  an  acquittal  of  the  whole.  Therefore  the 
result  of  such  an  acquittal  would  only  be  that  the  acts  were  not  done 
with  intent  to  kill,  and  although  it  was  urged  that  under  a  recent  Act 
of  Parliament  it  was  competent  to  the  jury  on  the  previous  occasion  to 
convict  of  unlawfully  wounding,  I  am  not  sure  if  the  whole  record  had 
been  before  us  that  that  would  have  presented  any  sort  of  answer.  But 
the  record  is  not  before  us  :  all  we  have  is  that  the  jury  acquitted  the 
party  of  the  wounding  with  intent  to  kill ;  that  is  the  only  thing  we  have 
to  deal  with.  It  appears  to  me,  therefore,  with  reference  to  all  the 
authorities  that  have  been  laid  before  us,  that  the  two  offences  are  not 
the  same,  that  the  plea  cannot  be  supported,  and  that  the  prisoner  must 
answer  over.  I  am  authorized  to  state  that  Mr.  Justice  Crompton,  and 
Mr.  Baron  AVatson,  before  whom  the  case  came  at  the  last  Sessions, 
have  looked  into  the  matter,  and  concur  in  the  view  now  taken. 

Martin,  B.,  said  he  was  of  the  same  opinion.     After  alluding  to  the 


SECT.    I.l  REGINA    V.    MORRIS.  991 

If 

peculiar  form  of  the  plea,  which  omitted  to  avei*  the  identity  of  the 
crime  now  charged  with  that  of  which  the  prisoner  had  been  acquitted, 
and  which  omission  in  his  opinion  was  fatal  to  the  plea,  he  referred  to 
that  portion  of  the  argument  founded  upon  the  maxim  that  no  man 
could  be  tried  twice  for  one  and  the  same  crime.  That  maxim  pre- 
sented a  true  criterion  by  which  to  test  this  question.  Is  the  crime 
here  one  and  the  same?  Now  the  offence  for  which  the  prisoner  has 
been  tried  was  one  of  intent,  and  was  therefore  complete  the  moment 
the  stab  was  given,  whereas  the  offence  for  which  he  was  now  indicted 
could  only  be  consummated  by  the  death  of  the  party.  To  the  mind  of 
a  lawj'er  this  must  be  deemed  conclusive  against  the  plea. 

WiLLES,  J.  —  In  order  to  support  this  plea  it  must  be  shown  that  the 
former  acquittal  was  an  acquittal  of  all  that  state  of  facts  which  might 
constitute  the  party  a  murderer.  Now  on  comparing  the  two  indict- 
ments it  was  clear  that  the  jury  had  not  so  acquitted  the  prisoner  ;  all 
that  w^as  then  disposed  of  was  that  he  did  not  wound  with  intent  to  kill. 
It  could  not  be  assumed  that  the  jury  negatived  the  wounding  ;  there- 
fore, if  the  wounding,  coupled  with  circumstances  not  showing  an 
intention  to  kill,  might  constitute  murder,  the  prisoner  ought  now  to  be 
tried  for  that  offence,  and  that  this  might  be  the  case  was  clearly  shown 
by  the  fact  tliat  persons  inflicting  wounds  whilst  engaged  in  the  com- 
mission of  burglary  or  robbery  without  any  intention  to  kill  would  be 
guilty  of  murder  where  death  ensued.  In  my  opinion,  the  same  matter 
was  not  again  in  discussion.  The  demurrer  must  be  allowed,  and  judg- 
ment given  for  the  Crown. 

The  prisoner  was  then  given  in  charge  both  upon  the  indictment  and 
inquisition  for  the  wilful  murder  of  Kobert  Henderson  Robertson.  The 
jury  found  the  prisoner  guilty  of  manslaughter. 


REGINA  V.    MORRIS. 
Crown  Case  Reserved.     1867. 

[Reported  10  Cox  C.  C.  480.] 

Case  reserved  for  the  opinion  of  this  court  by  Mr.  Baron  Pigott :  — 

Thomas  Morris  was  tried  before  me  at  the  Stafford  Spring  Assizes, 
upon  an  indictment  for  the  manslaughter  of  Timothy  Lymer,  by  inflict- 
ing bodily  injuries  on  him  on  the  25th  June. 

It  was  proved,  in  evidence,  that  the  prisoner  had  been  summoned 
before  the  magistrates  at  the  instance  of  the  said  Timothy  Lymer,  for 
the  assaults  which  caused  the  death,  and  was  convicted  and  sentenced 
to  imprisonment  with  hard  labor.     He  underwent  that  punishment. 

Timothy  Lymer  died  on  the  1st  of  September  from  the  injuries 
resulting  from  the  above-mentioned  assaults.  It  was  contended  under 
sect.  45  of  the  24  &  25  Vict.  c.  100,  that  the  conviction  for  the  assaults 


992  reCtIna  v.  morris.  [chap.  xvi. 

afforded  a  defence  to  the  present  indictment  for  manslaughter.  See  R. 
V.  Eh'ington,  9  Cox  Crim.  Cas.  86. 

There  was  a  substantial  question  raised  by  the  evidence,  whether  the 
manslaughter  was  the  result  of  injuries  inflicted  by  the  prisoner  Morris 
or  the  prisoner  Gibbons,  joined  in  the  present  indictment,  and  whether 
they  were  acting  in  concert. 

T  thought  it  desirable  to  let  the  prisoner  Morris  have  the  benefit  of 
either  of  the  defences,  and  for  that  purpose  to  let  the  questions  of  fact 
go  to  the  jury  upon  the  plea  of  not  guilty,  and  to  reserve  the  question 
of  law  under  the  aforesaid  sect.  45,  for  the  opinion  of  this  court. 

The  prisoner  Gibbons  was  acquitted,  and  the  prisoner  Morris  was 
convicted. 

If  the  court  should  be  of  opinion  that  a  conviction  for  the  assault  at 
the  instance  of  the  injured  person,  under  sect.  45,  affords  a  defence  in 
law  to  an  indictment  for  manslaughter  resulting  from  that  assault,  then 
a  plea  of  not  guilty  to  be  entered ;  otherwise  the  prisoner  Morris  to  be 
called  up  for  judgment  at  the  next  assizes.  G.  Pigott. 

G.  Broivne,  for  the  prisoner.  —  The  conviction  cannot  be  sustained. 
The  prisoner  having  been  convicted  for  the  assault  upon  Lymer,  and 
undergone  the  imprisonment  to  which  he  was  sentenced  for  it,  was 
thereby  released  from  all  further  proceedings  in  respect  thereof,  though 
unfortunately  the  assault  has  resulted  in  the  death  of  Lymer.  The  24 
&  25  Vict.  c.  100,  s.  45,  enacts  that,  "  If  any  person  against  whom  any 
Buch  complaint  as  in  either  of  the  last  three  preceding  sections  men- 
tioned shall  have  been  preferred  by  or  on  the  behalf  of  the  party 
aggrieved  shall  have  obtained  such  certificate,  or  having  been  convicted, 
shall  have  paid  the  whole  amount  adjudged  to  be  paid,  or  shall  have 
suffered  the  imprisonment,  or  imprisonment  with  hard  labor,  awarded, 
in  every  such  case  he  shall  be  released  from  all  further  or  other  pro- 
ceedings, civil  or  criminal,  for  the  same  cause."  This  enactment  is 
similar  to  one  in  the  repealed  statute  (9  Geo.  4,  c.  31,  s.  27),  upon 
which,  in  Reg.  v.  Walker,  2  Moo.  &  Rob.  446,  it  was  held  that  a  con- 
viction for  the  assault  before  justices  was  a  bar  to  an  indictment  for 
feloniously  stabbing  in  respect  of  the  same  matter.  And  so  again  in 
Reg.  V.  Elrington,  9  Cox  Crim.  Cas.  86,  it  was  held  that  a  certificate 
of  justices  of  the  dismissal  of  a  complaint  for  an  assault  might  be 
pleaded  in  bar  to  an  indictment  founded  on  the  same  facts,  for  doing 
grievous  bodily  harm,  and  occasioning  actual  bodily  harm.  In  Reg.  r. 
Stanton,  5  Cox  Crim.  Cas.  324,  Erie,  C.  J.,  expressed  a  similar 
opinion.  He  also  referred  to  1  Hawk.  P.  C,  bk.  1,  c.  13,  s.  4. 
[Martin,  B.,  referred  to  the  case  of  Reg.  v.  Salvi,  46  Central  Criminal 
Court  Sessions  Paper,  884.J 

No  counsel  appeared  for  the  prosecution.  Cur.  adv.  vult. 

Kelly,  C.  B.  —  In  this  case  I  have  the  misfortune  to  differ  with  my 
learned  brethren,  who  are  of  opinion  that  the  conviction  ought  to  be 
aflfirmed.     The  prisoner  was  charged  before  the  magistrates  with  an 


SECT.    I.]  REGINA   V.    MORRIS.  993 

assault  under  the  24  &  25  Vict.  c.  100,  at  tlie  instance  of  the  party 
aggrieved,  and  now  deceased,  Timothy  Lymer;  he  was  convicted  and 
sentenced  to  iinprisoninent  with  hard  labor,  and  has  undergone  that 
sentence.  The  assault,  the  unlawful  act,  with  which  he  was  charged, 
is  the  same  assault  and  one  and  the  same  act  as  that  which  caused  the 
death  of  Lymer,  and  of  which  he  has  been  convicted  under  the  present 
indictment.  I  think,  therefore,  that  the  case  comes  within  the  precise 
words  of  sect.  45  of  the  24  &  25  Vict.  c.  100,  which  provides  that  in 
such  a  case  "  he  shall  be  released  from  all  further  or  other  proceedings, 
civil  or  criminal,  for  the  same  cause."  It  is  true  that  the  offence  is 
now  charged  in  other  language  ;  that  which  before  the  magistrates  was 
described  as  an  insult,  is  now  described  as  manslaughter;  but  it  is 
one  and  the  same  act,  and  the  cause  of  the  prosecution  before  the 
magistrates,  and  the  cause  of  this  prosecution,  are  one  and  the  same 
cause.  The  case,  therefore,  comes  within  the  letter  as  well  as  the 
spirit  of  the  Act  of  Parliament,  and  I  think  that  to  sustain  the  convic- 
tion would  be  directly  to  violate  the  maxim  or  principle  of  the  law 
nemo  debet  bis  vexari  (here  we  might  say  ^^uniri)  pro  eddem  causd. 
Cases  may,  indeed,  be  suggested  in  which  there  might  be  a  failure  of 
justice,  as  where  an  assault  should  have  been  treated  lightly  by  a 
magistrate,  and  upon  conviction  a  light  sentence  passed,  and  yet 
from  the  subsequent, death  of  the  party  assaulted  the  offence  might 
amount  to  murder.  But  such  a  case  must  be  rare  and  exceptional, 
and  I  think  we  ought  to  presume  that  the  magistrates  will  in  all  cases 
under  this  or  any  other  Act  of  Parliament  do  their  duty.  And  as 
where  the  charge  is  made  at  the  instance  of  the  party  aggrieved,  it 
may  also  be  presumed  that  the  whole  of  the  evidence  would  be  fully 
brought  before  the  magistrates,  and,  upon  conviction,  an  adequate 
punishment  inflicted  accordingly,  I  do  not  think  that  it  was  the  inten- 
tion of  the  Legislature,  or  is  consistent  with  natural  justice,  that  the 
accident  of  the  subsequent  death  of  the  party  should  subject  the  accused 
to  a  repetition  of  the  trial  and  punishment.  Salvi's  case  is  clearly  dis- 
tinguishable. There  the  prisoner  was  indicted  for  the  murder  of  one 
Robertson,  and  pleaded  a  plea  of  autrefois  acquit,  the  acquittal  having 
been  on  an  indictment  for  wounding  with  intent  to  kill.  It  was  clear 
that  this  acquittal  might  have  been  pronounced  upon  the  ground  of  the 
jury  having  negatived  the  intent  to  kill,  and  j'etthat  the  prisoner  might 
well  be  guilty  of  the  murder  without  an  intent  to  kill  the  individual 
murdered,  as  if  he  had  shot  at  another  man,  but  unintentionally  killed 
Robertson.  The  plea,  therefore,  of  autrefois  acquit  was  in  that  case 
properly  overruled.  Here,  however,  the  prisoner  has  been  tried,  con- 
victed, and  punished  for  the  very  same  offence  in  all  its  parts,  though 
under  another  name,  as  that  for  which  he  is  now  indicted,  and  again 
convicted,  and  it  seems  to  me  that  to  allow  this  conviction  to  stand  is 
to  punish  a  man  twice  for  the  same  cause,  in  violation  of  the  before- 
mentioned  maxim  and  of  the  express  language  of  the  Act  of  Parlia- 
ment.    I  think,  therefore,  that  the  conviction  ought  to  be  quashed. 


994  EEGTNA   V.    MOERIS.  fCHAI'.  XVI. 

Martin,  B. — I  am  of  opinion  that  the  conviction  ought  to  be  suS' 
tained.  The  facts  are:  Thomas  Morris  was  convicted  of  an  assault  on 
Timothy  Lymer,  and  committed  to  prison  under  the  24  &  25  Vict, 
c.  JOO,  s.  42.  He  hasundergone  that  punishment,  and  Timothy  Lymer, 
the  man  assaulted,  has  since  died  in  consequence  of  that  assault. 
Now,  this  indictment  is  for  the  manslaughter  of  that  man ;  and  the 
question  is,  whether  the  suffering  of  the  imprisonment  for  the  assault 
is  an  answer  to  that  indictment,  and  that  depends  on  the  meaning  of 
the  words  "  for  the  same  cause  "  in  the  statute.  I  agree  with  the  Lord 
Chief  Baron  that  the  case  of  Reg.  v.  Salvi  is  not  expressly  in  point. 
Salvi  had  been  acquitted  of  an  assault  with  intent  to  murder,  but  con- 
victed of  an  assault  with  intent  to  do  grievous  bodily  harm,  and  the 
prosecutor  having  subsequently  died  from  the  assault,  he  was  indicted 
for  murder;  and  it  was  held  that  he  might  be  properly  so  indicted,  for 
that  murder  might  be  committed  without  any  intent  to  kill,  as,  for 
instance,  if  a  man,  intending  only  to  maim,  caused  death,  that  is  murder. 
I  think  that  decision'  was  correct.  I  should  be  sorry  to  draw  a  distinc- 
tion between  the  words  "for  the  same  cause"  in  the  plea  of  autrefois 
acquit,  on  which  that  case  was  adjudicated,  and  the  same  words  in  the 
stat.  24  &  25  Vict.  c.  100,  s.  45.  It  would  be  a  very  serious  thing  if 
there  were  any  distinction.  The  statute  gives  a  release  from  all  further 
or  other  proceedings,  civil  or  criminal;  and  if  a  different  construction 
were  adopted,  it  would  follow  that  if  an  action  were  brought  under 
Lord  Campbell's  Act  in  respect  of  the  death  of  the  person  assaulted, 
the  conviction  and  punishment  for  the  mere  assault  would  be  a  bar  to 
any  claim  for  compensation.  I  apprehend  that  that  cannot  be  so ;  and 
that  the  cause  on  which  the  justices  adjudicated  was  not  the  same  as 
that  for  which  the  prisoner  has  been  convicted  under  this  indictment. 
A  new  offence,  in  my  opinion,  arose  when  the  man  died.  I  therefore 
think  that  this  con\'iction  was  right. 

Byles,  J.  —  I  am  of  opinion  that  the  prior  con\^ction  for  the  assault 
under  the  24  &  25  Vict.  c.  100,  s.  45,  affords  no  defence  to  the  subse- 
quent indictment  for  manslaughter,  the  death  of  the  deceased  having 
occurred  after  the  conviction,  but  being  a  consequence  of  the  assault. 
The  form  and  intention  of  the  common  law  pleas  of  autrefois  convict 
and  autrefois  acquit  show  that  they  apply  only  where  there  has  been  a 
former  judicial  decision  on  the  same  accusation  in  substance,  and  where 
the  question  in  dispute  has  been  already  decided.  There  has,  in  the 
present  case,  been  no  judicial  decision  on  the  same  accusation,  and  the 
whole  question  now  in  dispute  could  not  have  been  decided,  for  at 
the  time  of  the  hearing  before  the  magistrates  whether  the  assault 
would  amount  to  culpable  homicide  or  not  depended  on  the  then  future 
contingency  whether  it  would  cause  death.  The  case  of  Reg.  v.  .Salvi, 
if  not  precisely  in  point,  is  nevertheless  a  strong  authority  for  this  view 
of  the  law.  But  reliance  is  placed  on  the  words  of  the  statute  24  &  25 
Vict.  c.  100,  s.  45,  "  for  the  same  cause."  It  is  to  be  observed  that 
that  statute  does  not  say  for  the  same  act,  but  "  for  the  same  cause." 


SECT. 


I.]  COMMONWEALTH    V.    HOBY.  995 


The  word  "  cause  "  may  undouhtedly  mean  "  act,"  but  it  is  ambiguous, 
and  it  may  also,  and  perhaps  with  greater  propriety,  be  held  to  mean 
"cause  for  the  accusatiou."  The  cause  for  the  present  indictment 
comprehends  more  than  the  cause  in  the  former  summons  before  the 
magistrates,  for  it  comprehends  the  death  of  the  party  assaulted.  It  is 
therefore,  at  least  in  one  sense,  not  the  same  cause.  But  if  these  obser- 
vations on  the  meaning  of  the  word  "  cause,"  as  used  in  the  statute, 
should  appear  to  savour  too  much  of  refinement,  and  to  be  used  in 
support  of  a  forced  construction,  it  must  be  remembered  that  it  is  a 
sound  rule  to  construe  a  statute  in  conformity  with  the  common  law 
rather  than  against  it,  except  where  or  so  far  as  the  statute  is  plainly 
intended  to  alter  the  course  of  the  common  law.  An  additional  reason 
in  this  case  for  following  the  common  law  is  the  mischief  which  would 
result  from  a  different  construction.  My  brother  Martin  has  already 
illustrated  the  mischief  in  civil  cases  by  a  reference  to  Lord  Campbell's 
Act,  and  in  criminal  cases  the  mischiefs  might  be  much  greater.  A 
murderer,  for  example,  by  suffering  or  obtaining  a  previous  conviction 
for  an  assault,  might  escape  the  due  punishment  of  his  crime. 

Keating,  J.,  and  Shee,  J.,  concurred.  Conviction  affirmed. 


COMMONWEALTH   v.    ROBY. 
Supreme  Judicial  Court  of  Massachusetts.     1832. 

[Reported  12  Pick.  496.] 

The  defendant  was  indicted  for  the  murder  of  Maria  Leonard.  He 
pleaded  a  special  plea  in  bar,  in  which  he  alleged  that  he  had  previously 
been  convicted,  sentenced  and  committed  for  a  felonious  assault  upon 
the  said  Leonard  with  iutenl  to  murder  her,  which  is  the  same  offense.^ 

Shaw,  C.  J.  We  are  all  of  opinion,  that  the  facts  constituting  the 
felony  and  murder  charged  in  the  indictment  now  pending,  would  not 
have  been  competent  evidence  to  warrant  a  conviction  of  the  offence 
charged  in  the  indictment  in  the  Municipal  Court.  That  offence  was  a 
misdemeanor,  to  wit,  an  assault,  charged  to  have  been  committed  with 
a  felonious  intent  to  murder.  The  offences  are  distinct  in  their  nature, 
of  a  distinct  legal  character,  and  in  no  case  could  a  party  on  trial  for 
the  one  be  convicted  of  the  other. 

The  indictment  for  murder  necessarily  charges  the  fact  of  killing,  as 
the  essential  and  most  material  fact,  which  gives  its  legal  character  to 
the  offence.  If  the  party  assaulted,  after  a  felonious  assault,  dies 
within  the  year  and  day,  the  same  act,  which  till  the  death  was  an 
assault  and  misdemeanor  only,  though  aggravated,  is  by  that  event 
shown  to  have  been  a  mortal  wound.  The  event,  strictly  speaking, 
does  not  change  the  character  of  the  act,  but  it  relates  back  to  the  time 

1  This  statement  of  facts  is  substituted  for  that  of  the  reporter.  Part  of  the  opin- 
ion is  omitted.  —  Ed. 


996  COMMONWEALTH   V.   ROBY.  [CHAP.  XVI. 

of  the  assault,  and  the  same  act,  which  might  be  a  felonious  assault 
only,  had  the  party  not  died,  is  in  truth  shown  by  that  event  to  have 
been  a  mortal  wound,  and  the  crime,  which  would  otherwise  have  been 
an  aggravated  misdemeanor,  is  thus  shown  to  be  a  capital  felony. 
The  facts  ai-e  essentially  different,  and  the  legal  character  of  the  crime 
essentially  different.  .   .   . 

If  on  an  indictment  for  a  felony  there  cannot  be  a  conviction  for  a 
misdemeanor,  it  seems  to  be  a  necessary  inference,  that  on  an  indict- 
ment for  a  misdemeanor,  if  the  evidence  be  such  as  to  prove  a  felony 
actually  committed,  the  prisoner  must  be  acquitted  of  the  misdemeanor, 
in  order  to  being  indicted  for  the  felony. 

This  construction  is  strongly  corroborated  by  considering  the  effect 
of  a  pardon. 

It  was  stated  at  the  bar,  in  the  course  of  the  argument,  that  inas- 
much as  an  assault  is  a  necessary  ingredient  in  the  crime  of  murder, 
a  pardon  of  an  assault  would  by  necessary  consequence  operate  as  a 
pardon  of  the  murder.  The  argument  is  certainly  countenanced  by  a 
passage  in  Lord  Hale.  "If  a  man  give  another  a  mortal  stroke,  and 
he  dies  thereof  within  a  year  and  a  da}^,  but  mesne  between  the  stroke 
and  the  death  there  comes  a  general  pardon,  whereby  all  misdemeanors 
are  pardoned,  this  doth  pardon  the  felony  consequentially,  because  the 
act,  that  is  the  offence,  is  pardoned,  though  it  be  not  a  felony  till  the 
party  die  ; "  1  Hale's  P.  C.  425  ;  for  which  Cole's  case  is  cited  from 
Plowden.  If  such  would  be  the  effect  of  a  pardon,  it  would  go  far  to 
support  the  argument  in  favor  of  the  plea  in  bar ;  for  it  is  difficult  to 
perceive  any  substantial  distinction  between  a  former  acquittal  or 
former  conviction  and  a  pardon.  Each  effectually  secures  the  party 
charged  from  further  prosecution.  But  we  are  satisfied,  from  the  most 
careful  examination  of  the  question,  that  such  would  not  be  the  eflect 
of  a  pardon.  This  subject  is  fully  considered  in  Foster's  Crown  Law, 
an  authority  of  the  highest  character  in  questions  of  this  nature. 

Case  of  Nicholas,  Foster's  Cr.  L.  64.  The  prisoner  was  indicted  for 
petty  treason.  It  w^as  argued  in  his  behalf,  that  he  was  entitled  to  the 
benefit  of  the  act  of  general  pardon  passed  at  the  last  session,  which 
took  effect  after  the  poison  was  administered,  but  before  death  ensued. 
It  was  admitted  that  wilful  murder  and  petty  treason  were  excepted, 
but  it  was  insisted  that  until  the  death  ensued,  which  was  after  the  act 
of  pardon  took  effect,  the  offence  could  be  considered  in  no  other  light 
than  a  high  misdemeanor,  and  the  pardon  operated  upon  it  in  that 
light ;  and  consequently  the  homicide,  which  was  but  the  consequence 
of  the  offence  pardoned,  was  likewise  pardoned ;  and  the  above  passage 
from  Lord  Hale  was  relied  upon.  To  this  it  was  answered  by  the 
recorder,  that  Hale,  in  this  passage,  grounds  himself  singly  on  the 
authority  of  Cole's  case  ;  and  then  the  recorder  proceeds  to  show  that 
Cole's  case,  as  reported,  does  not  warrant  the  rule  in  the  latitude  con- 
tended for.  The  case  is  examined  at  length.  The  doubt  was,  whether 
the  act  could  operate  so  as  to  pardon  a  felony  which  was  not  completed, 


SECT.    I.]  WEMYSS   V.    HOPKINS.  997 

the  death  not  having  happened  when  the  act  went  into  operation.  But 
the  effect  of  the  decision  of  the  court  was,  that  the  felony  having  had 
its  commencement,  before  the  pardon  took  place,  and  that  species  of 
felony,  that  is,  manslaughter,  being  pardoned  by  the  act,  the  prisoner 
was  entitled  to  the  benefit  of  the  pardon,  though  the  felony  was  not 
completed,  by  tlie  death  of  the  party,  till  after  the  act ;  and  the  pardon 
should  operate  in  favor  of  the  prisoner,  in  the  same  manner  as  it  would 
have  done  if  the  felony  had  been  complete,  and  in  no  other  manner. 
And  in  the  principal  case  (Nicholas's)  it  was  therefore  held,  that  the 
pardon  of  misdemeanors,  though  at  the  time  when  the  act  took  effect 
the  offence  committed  was  a  high  misdemeanor  only,  did  not  so  oi)erate 
as  to  pardon  the  felony,  and  the  prisoner  was  convicted  and  executed. 
It  proceeds  manifestly  on  the  ground,  that  though,  at  the  time  the 
pardon  took  effect,  the  only  offence  with  which  the  prisoner  was  charge- 
able was  the  felonious  assault,  the  death  not  having  ensued,  and  if  so, 
was  pardoned  by  force  of  the  general  act,  by  a  subsequent  event  not 
caused  by  any  further  agency  of  the  prisoner,  the  crime  was  not  changed 
from  trespass  to  felony,  but  was  shown  to  have  been  a  felony  from  the 
time  of  the  mortal  wound  given,  and  so  not  included  in  the  pardon. 
This  renders  it  manifest  that  they  are  distinct  offences,  in  fact  and  in 
law ;  the  one  pardoned  being  within  the  terms  of  the  act,  and  the  other 
not  so,  being  excepted. 


WEMYSS  V.  HOPKINS. 
Queen's  Bench.     1875. 
[Reported  L.  R.  10  Q.  B.  378.] 

Case  stated  by  justices  of  Cardiganshire  under  20  &  21  Vict.  c.  43. 

At  the  petty  sessions  at  Aberystwith,  on  the  26th  of  June,  1872,  a 
complaint  was  preferred  by  the  superintendent  of  police  against  the 
appellant,  under  5  &  6  Wm.  4,  c.  50,  s.  78,  for  that  the  appellant, 
on  the  15th  of  June,  1872,  being  the  driver  of  a  certain  carriage  on  a 
certain  highway,  called  Penpache  Road,  did  then  and  there,  by  negli- 
gence or  wilful  misbehavioi',  to  wit,  by  striking  a  certain  horse  ridden 
by  the  now  respondent,  cause  certain  hurt  and  damage  to  the  now 
respondent,  passing  on  the  highway,  by  causing  severe  bruises  and 
concussion  of  the  hip-joint. 

The  appellant  was  convicted  and  fined  £2. 

At  the  petty  sessions  at  Aberystwith,  on  the  7th  of  August,  1872, 
a  complaint  was  preferred  by  the  respondent  against  the  appellant, 
under  24  &  25  Vict.  c.  100,  s.  42,  for  that  the  appellant  did,  on  the 
15th  of  June,  1872,  unlawfully  assault,  strike,  and  otherwise  abuse 
the  respondent. 

The  appellant  was  convicted  and  fined  £1. 

On  the  hearing  of  the  last  complaint,  the  justices  found  as  a  fact 


998  WEMYSS    V.    HOPKINS.  [CHAP.  XVI. 

that  the  appellant  did,  on  the  15th  of  June,  1872,  unlawfully  and 
wilfull}'  strike  and  push  against  the  horse  upon  which  the  respondent 
was  riding,  and  also  against  the  respondent  herself,  and  caused  her  to 
fall  from  the  horse  to  the  ground,  whereby  she  sustained  a  concussion 
of  the  hip-joint. 

It  was  contended  on  behalf  of  the  appellant  that,  as  he  had  been  con- 
victed of  the  complaint  preferred  against  him  on  the  26th  of  June,  he 
could  not  be  convicted  again  for  what  was  the  same  offence 

The  question  for  the  court  was  whether  the  appellant,  having  been 
convicted  on  the  26th  of  Ji!ne,  1872,  under  3  &  4  Wm.  4,  c  50,  upon 
the  complaint  of  the  superintendent  of  police,  could  again  be  convicted 
on  the  7th  of  August,  187-!,  under  24  &  25  Vict.  c.  100,  s.  42,  upon  the 
complaint  of  the  respondent.^ 

Blackburn,  J.  I  think  the  fact  that  the  appellant  had  been  con- 
victed by  justices  under  one  Act  of  Parliament  for  what  amounted  to 
an  assault  is  a  bar  to  a  conviction  under  another  Act  of  Parliament  for 
the  same  assault.  The  defence  does  not  arise  on  a  plea  of  autrefois 
convict,  but  on  the  well-established  rule  at  common  law  that  where  a 
person  has  been  convicted  and  punished  for  an  offence  by  a  court  of 
competent  jurisdiction,  transit  in  rem  judicatam ;  that  is,  the  conviction 
shall  be  a  bar  to  all  further  proceedings  for  the  same  offence,  and  he 
shall  not  be  punished  again  for  the  same  matter ;  otherwise  there  might 
be  two  different  punishments  for  the  same  offence.  The  only  point 
raised  is  whether  a  defence  in  the  nature  of  a  plea  of  autrefois  convict 
would  extend  to  a  conviction  before  two  justices  whose  jurisdiction  is 
created  by  statute.  I  think  the  fact  that  the  jurisdiction  of  the  justices 
is  created  by  statute  makes  no  difference.  Where  the  conviction  is  by 
a  court  of  competent  jurisdiction,  it  matters  not  whether  the  conviction 
is  by  a  summary  proceeding  before  justices  or  by  trial  before  a  jury. 
It  is  necessary  in  the  present  case  to  have  it  proved,  just  as  in  the  case 
of  a  defence  upon  the  plea  of  autrefois  convict,  that  on  a  former  occa- 
sion the  appellant  was  charged  with  the  same  assault,  although  not  in 
the  same  words,  yet  in  terms  the  same,  and  that  he  was  then  convicted 
and  punished.  That  is  the  substantial  averment  in  a  plea  of  autrefois 
convict.  Reg.  v.  Elrington,  1  B  &  S.  688;  31  L.  .1.  (M.  C.)  14,  and  the 
other  cases  cited  do  not  apply,  for  the  provisions  of  §  28  of  9  Geo.  4, 
c.  31,  which  have  been  re-enacted  in  24  &  25  Vict.  c.  100,  s.  45,  go 
further  than  the  common  law,  and  release  a  person  who  has  been  con- 
victed and  paid  the  fine ;  or  who,  being  acquitted,  has  obtained  a  cer- 
tificate freeing  him  from  further  proceedings,  civil  or  criminal,  for  the 
same  cause.  In  this  case  we  must  rely  upon  the  common  law.  It  seems 
that  the  same  identical  matter  was  brought  before  a  competent  tribunal 
and  the  appellant  was  convicted  and  punished  for  it.  I  do  not  know 
whether  serving  the  punishment  makes  any  difference ;  but  he  was 
convicted  and  sentenced  for  it,  and  therefore  he  cannot  be  tried  again 
for  the  same  thing  before  another  tribunal ;  and  the  justices  who  con- 
1  Argument  of  counsel  is  omitted. 


SECT.    I.]  STATE   V.   INGLES. 


999 


victed  the  appellant  a  second  time  made  a  mistake,  and  the  conviction 
must  be  quashed. 

Lush,  J.  I  am  also  of  opinion  that  the  second  conviction  should  be 
quashed  upon  the  ground  that  it  violated  a  fundamental  principle  of 
law,  that  no  person  shall  be  prosecuted  twice  for  the  same  offence. 
The  act  charged  against  the  appellant  on  the  first  occasion  was  an 
assault  upon  the  respondent  while  she  was  riding  a  horse  on  the  high- 
way, and  it  therefore  became  an  offence  for  which  the  appellant  might 
be  punished  under  either  of  two  statutes.  The  appellant  was  prosecuted 
for  the  assault,  and  convicted  under  one  of  the  statutes,  3  «fe  4  Wm.  4, 
c.  50,  s.  78,  and  fined,  and  he  therefore  cannot  be  afterwards  convicted 
ao-ain  for  the  same  act  under  the  other  statute. 
*FiELD,  J.  I  am  of  the  same  opinion.  The  case  seems  to  fall  within 
the  principle  enunciated  in  the  text-books,  particularly  in  Paley  on 
Convictions,  5th  ed.  p.  145,  and  Broom,  Legal  Maxims,  3d  ed.  p.  312; 
and  I  think  the  circumstance  that  this  was  a  conviction  under  a  juris- 
diction created  by  statute  does  not  make  any  difference  in  principle. 
A  person  cannot  be  twice  punished  for  the  same  cause. 

Judgment  for  the  appellant.^ 


STATE  V.  INGLES. 
Superior  Court  op  North  Carolina.     1797. 

[Reported  2  Haywood,  4.] 

Indictmekt  for  a  riot  with  others,  and  for  beating  and  imprisoning 
Edward  D.  Barry.  The  defendant  pleaded  that  he  had  been  heretofore 
indicted  in  the  County  Court  of  Edgcombe  for  an  assault  and  battery 
on  the  said  Barry,  and  thereon  had  been  convicted  and  fined,  which 
indictment  and  conviction  had  been  grounded  on  the  same  facts  that 
this  indictment  was  preferred  for. 

Per  Curiam.  After  argument  by  Baker  for  the  State,  and  White 
for  the  defendant,  the  truth  of  this  plea  is  admitted  by  the  demurrer. 
The  State  cannot  divide  an  offence  consisting  of  several  trespasses  into 
as  many  indictments  as  there  are  acts  of  trespass  that  would  separately 
support  an  indictment,  and  afterwards  indict  for  the  offence  compounded 
of  them  all;  as,  for  instance,  just  [first?]  to  indict  for  an  assault, 
then  for  a  battery,  then  for  imprisonment,  then  for  a  riot,  then  for  a 
mayhem,  &c.  But  upon  an  indictment  for  any  of  these  offences  the 
court  will  enquire  into  the  concomitant  facts,  and  receive  information 
thereof,  byway  of  aggravating  the  fine  or  punishment,  and  will  propor- 
tion the  same  to  the  nature  of  the  offence  as  enhanced  by  all  these 
circumstances ;  and  no  indictment  will  afterwards  lie  for  any  of  these 
separate  facts  done  at  the  same  time.     This  plea  is  a  good  one,  and 

must  be  allowed. 

The  plea  ivas  allowed  and  the  defendant  discharged. 

1  See  Hankins  v.  People,  106  111.  628  ;  cf.  State  v.  Thornton,  37  Mo.  360. 


1000  STATE   V.   DAMON.  [CHAP.  XVI. 


STATE  V.  DAMON. 
Supreme  Court  of  Judicature  of  Vermont,     1803. 

[Reported  2  Tyler,  387.] 

Curia.^  It  appears  that  the  defendant  wounded  two  persons,  in  the 
same  affray,  at  the  same  instant  of  time,  and  with  the  same  stroke.  On 
a  regular  complaint  made,  he  has  been  convicted  before  a  court  of  com- 
petent jurisdiction,  for  assaulting,  beating,  and  wounding  Frederick 
Miller,  one  of  those  persons.  He  stands  here  indicted  for  assaulting, 
beating,  and  wounding  Elias  Doty,  the  other  of  those  persons  ;  and  the 
defendant  pleads  in  bar  the  former  conviction,  which  he  alleges  to  have 
been  for  the  same  offence.  The  only  question  is  whether  the  defendant 
has  been  already  legally  convicted  of  the  offence  charged  in  the  indict- 
ment. Of  this  there  can  be  no  doubt ;  for  it  is  apparent  on  the  record 
that  the  assault  and  battery  charged  in  the  indictment,  and  that  of 
which  he  was  convicted  by  Mr.  Justice  Randall,  were  at  the  same 
place  and  in  the  same  affray,  and  the  wounds  made  by  the  same  instru- 
ment and  by  the  same  stroke. 

This  is  not  a  question  between  either  of  the  persons  injured  by  the 
assault  and  battery  and  their  assailant ;  redress  has  been,  or  may  be 
obtained  by  them  by  private  actions;  but  it  is  a  question  between 
the  government  and  its  subject,  and  the  court  are  clearly  of  opinion 
that  the  indictment  cannot  be  sustained.  The  indictment  charges  the 
defendant  with  having  disturbed  the  public  peace  by  assaulting  and 
wounding  one  of  its  citizens.  For  this  crime  he  shows  that  he  has  been 
legally  convicted  by  a  court  of  competent  jurisdiction.  He  cannot 
therefore  be  again  held  to  answer  in  this  court  for  the  same  offence.^ 

Prisoner  discharged. 

1  The  opinion  only  is  given  ,  it  sufficiently  states  the  case.  —  Ed. 

2  The  question  here  is :  Cau  a  person,  duriug  the  same  evening,  at  a  ball,  commit 
a  separate  assault  and  battery  upon  each  of  two  individuals?  The  evidence  tends  to 
show  that,  as  matter  of  fact  simply,  it  was  done  in  this  case.  But  the  appellant  claims 
that  how  many  soever  of  assaults  and  batteries  he  may  have  committed  duriug  the 
period  of  excitement  at  the  ball,  they  all  amounted  in  law  to  but  one  offence,  and  that 
therefore  the  first  fine  inflicted  for  that  offence,  viz.,  that  by  Justice  Brown,  for  the 
assault  and  battery  on  Frank  Kelly,  was  a  bar  to  all  subsequent  prosecutions  for 
assault  and  battery  committed  during  the  period  of  excitement  before  mentioned.  We 
cannot  concur  in  this  view.  We  think  appellant  might  be  prosecuted  for  each  sepa- 
rate assault  and  battery.  —  Perkins,  J.,  in  Greenwood  v.  State,  64  Ind.  250. 


SECT.    I.]  STATE    V.    LEWIS.  1001 


STATE   V.    LEWIS. 
Supreme  Court  of  North  Carolina.     1822. 

[Reported  2  Hawks,  98.] 

At  September  term,  1821,  of  Pitt  Superior  Court,  two  bills  of  indict- 
ment against  the  prisoner  were  found  by  the  grand  jury  ;  the  one  for 
burglary  and  larceny,  the  other  for  a  robbery.  The  larceny  in  the  one 
bill,  and  the  robbei'y  in  the  other,  were  for  the  same  goods  and  chattels, 
and  there  was  but  one  taking.  At  the  same  term  the  prisoner  was 
found  guilty  of  the  larceny,  and  not  guilty  of  the  burglary.  On  this 
conviction  the  attorney-general  did  not  pray  any  judgment,  nor  was 
any  pronounced ;  and,  at  the  time  of  the  prisoner's  arraignment,  no 
motion  was  made  by  his  counsel  that  the  prosecuting  officer  should 
elect  on  which  indictment  he  would  try  the  prisoner.  At  March  term, 
1822,  the  prisoner  was  brought  to  the  bar,  and  the  attorney-general 
directed  a  nol.  pros,  to  be  entered  on  the  indictment  which  had  been 
tried  at  the  preceding  term,  but  the  court  (Norwood,  J.,  presiding) 
refused  to  permit  the  nol.  pros.  The  attorney-general  then  moved  to 
arraign  the  prisoner  on  the  indictment  for  robbery ;  this  also  was 
refused  by  the  court  until  the  first  indictment  should  be  disposed  of, 
and  on  the  refusal  of  the  attorney-general  to  pray  judgment  on  the  first 
indictment,  the  court  quashed  the  indictment  for  robbery.  On  motion 
of  prisoner's  counsel,  his  clergy  was  allowed  him  on  the  conviction  for 
larceny,  and,  on  the  further  refusal  of  the  attorney  general  to  pray  judg- 
ment, the  prisoner  was  ordered  to  be  discharged  ;  whereupon,  in  behalf 
of  the  State,  the  prosecuting  officer  appealed  to  this  court. 

Hall,  J.  It  is  admitted  in  this  case  that  both  indictments  are  for 
the  same  felonious  taking  of  the  same  goods.  The  defendant  is  found 
guilty  of  a  grand  larceny  on  that  indictment  which  charges  a  burglary 
and  stealing. 

The  otiier  indictment  is  for  a  robbery  ;  a  robbery  is  a  larceny,  but  of 
a  more  aggravated  kind.  The  first  is  a  simple  larceny.  The  other  is 
a  compound  or  mixed  larceny,  because  it  includes  in  it  the  aggravation 
of  a  felonious  taking  from  the  person. 

-,  Now,  suppose  the  defendant  should  be  tried  and  found  guilty  on  the 
second  indictment?  It  must  certainly  follow  that  he  had  been  tried 
twice  for  the  feloniously  taking  of  the  same  goods.  It  is  true,  if  the 
first  conviction  is  a  bar  to  a  trial  on  the  second  indictment,  the  prisoner 
would  go  untried  as  to  that  which  constitutes  the  difference  between 
simple  larceny  and  mixed  and  compound  larceny,  viz.,  a  taking  from  the 
person.  In  such  case  he  would  be  convicted  of  a  felonious  taking,  but 
not  of  a  felonious  taking  from  the  person.  Whereas,  should  he  be  tried 
and  convicted  on  both  indictments,  it  might  be  said  he  had  been  con- 
victed twice  of  a  felonious  taking,  and  once  of  a  felonious  taking  from 


1002  PEOPLE    V.    McGOWAN.  fCHAP.  XVI. 

the  person,  which  I  think  would  be  at  points  with  the  principle  "  that 
no  one  should  be  twice  put  in  peril  for  the  same  crime."  This  principle 
has  such  deep  root  in  the  criminal  law,  and  is  cherished  by  so  many 
judicial  decisions,  that  it  is  not  deemed  necessary  to  refer  to  any  of 
them. 

I  therefore  think  the  conviction  on  the  first  indictment  for  burglary 
and  larceny  a  good  plea  to  a  trial  on  the  second  indictment  for  robbery. 
I  also  tiiink  that  the  record  of  these  proceedings,  and  the  admissions  of 
the  attorney-general  were  sufficient  to  authorize  the  judge  below  to 
discharge  the  prisoner.  And  in  this  opinion  the  rest  of  the  court 
concurred. 


PEOPLE   V.  McGOWAN. 
Supreme  Codkt  of  Judicature  of  New  York.     1837. 

[Reported  \7  Wend,  ^i^-l 

Error  from  the  Albany  Oyer  and  Terminer.  The  defendant  was 
indicted  at  the  Albany  general  sessions  in  June,  1837,  for  grand  larceny, 
in  stealing  one  watch  of  the  value  of  IllO,  one  watch  of  the  value  of 
$65,  one  watch  of  the  value  of  $45,  one  gold  watch  of  the  value  of  $110, 
one  gold  watch  of  the  value  of  $65,  and  one  silver  watch  of  the  value  of 
$45,  the  property  of  one  Alexander  M'Harg.  The  prisoner  pleaded 
that  at  the  Albany  general  sessions  held  in  March,  1837,  he  was  in- 
dicted for  robbery,  being  charged  with  entering  a  shop,  putting  one 
James  De  Forrest  in  bodily  fear,  and  violently  taking  and  feloniously 
stealing  one  gold  watch  of  the  value  of  $110,  one  silver  watch  of  the 
value  of  $65,  and  one  other  silver  watch  of  the  value  of  $45,  the  prop- 
erty of  De  Forrest ;  and  also  with  entering  the  shop,  putting  De  F'orrest 
in  bodily  fear,  and  violently  taking  and  feloniously  stealing  one  gold 
watch  of  the  value  of  IllO,  one  silver  watch  of  the  value  of  $65,  and 
one  other  silver  watch  of  the  value  of  $45,  the  property  of  Alexander 
M'Harg ;  that  he  was  arraigned  and  pleaded  not  guilty  to  the  said  in- 
dictment ;  that  the  issue  thus  joined  was  tried  at  the  Albany  Oyer  and 
Terminer,  in  April,  1837,  and  that  he  was  duly  acquitted  by  the  verdict 
of  a  jury.  The  prisoner  then  averred  his  identity  and  the  identity  of 
the  offences  charged  in  the  two  indictments,  and  prayed  to  be  dis- 
missed. The  district  attorney  put  in  a  replication,  denying  the  identity 
of  the  offences,  and  upon  the  issue  thus  joined  the  prisoner  was  tried. 
The  record  of  acquittal  set  forth  in  the  plea  was  produced,  and  the 
counsel  for  the  prisoner  insisted  that  the  prisoner  was  entitled  to  a 
verdict  in  his  favor;  but  the  presiding  judge  charged  the  jury  that  to 
entitle  him  to  a  verdict  it  was  necessary  that  the  evidence  to  support  the 
last  indictment  would  have  been  sufficient  to  support  the  first  indict- 
ment, and  that  as  the  proof  to  support  a  charge  of  larceny  was  not 
sufficient  to  sustain  a  charge  of  robbery,  the  offences  charged  in  the  two 


SECT.  I.]  PEOPLE  V.    McGOWAN.  1003 

indictments  were  not  the  same,  and  consequently  the  acquittal  on  the 
first  indictment  was  no  bar  to  a  conviction  on  the  second,  and  that  it 
was  their  duty  to  find  the  prisoner  guilty.  The  jury  found  accordingly. 
The  prisoner  having  excepted  to  the  charge  of  the  judge,  sued  out  a 
writ  of  error. 

By  the  Court,  Cowen,  J.  The  first  indictment,  though  for  a  rob- 
bery, involved  the  question  of  simple  larceny,  of  which  the  prisoner, 
under  that  indictment,  might  have  been  convicted.  So  far  therefore  as 
the  nature  of  the  offence  is  concerned,  the  plea  was  valid;  the  prisoner 
had,  within  the  issue,  been  tried  and  acquitted  of  the  larceny.  The  rule 
laid  down  by  the  Court  of  Sessions  applied ;  for  the  same  proof  would 
sustain  either  indictment  to  the  extent  necessary  for  the  purposes  of 
the  plea. 

In  this  respect  no  proof  was  necessarj'  on  the  part  of  the  prisoner. 
The  replication  admitted  the  former  indictment  and  acquittal,  and  took 
issue  only  upon  the  identity  of  the  offences.  In  such  case  it  is  well 
settled  that  where  the  former  indictment  might  have  been  sustained  by 
showing  the  offence  charged  in  the  second,  a.  prima  facie  case  is  made 
out  for  the  prisoner.  It  then  lies  with  the  people  to  show,  by  evidence 
aliunde,  that  the  offences  are  substantially  different  in  point  of  fact,  or 
to  give  some  other  answer. 

In  the  case  before  us,  it  is  said  for  the  people  that  the  two  offences 
differ  in  respect  to  the  identity  of  property  ;  the  former  indictment 
speaking  of  six  gold  and  silver  watches,  three  of  which  belonged  to 
De  Forrest,  and  three  to  M'Harg ;  whereas,  now  it  is  charged  that  all 
the  six,  viz.,  three  watches,  and  three  gold  and  silver  watches,  belonged 
to  the  latter;  and  that  the  prisoner  admits  by  his  plea  that  he  stole 
these  six  which  belong  to  M'Harg.  We  cannot  but  see,  however, 
that  the  difference  is  mere  matter  of  form ;  and  that  proof  might 
have  been  received  at  the  last  trial  of  the  same  facts  which  would  have 
been  sufficient  to  sustain  the  indictment  upon  the  first.  The  admission 
in  the  plea  is  not  of  every  foi'mal  allegation  which  the  counsel  for  the 
people  may  choose  to  insert  in  a  second  indictment.  It  admits  the 
substance,  which  is  grand  larceny  of  some  watch  belonging  to  M'Harg» 
and  that  is  just  such  an  offence  as  might  have  been  shown  upon  the 
first  trial.  There  is  no  such  substantial  conflict  in  the  indictments  as 
to  preclude  the  common  averment  that  the  offences  are  one  and  the 
same,  and  not  other  or  different. 

The  replication  thus  admitting  a  former  trial  and  acquittal  upon  an 
indictment  sustainable  by  the  same  proof  which  would  be  receivable 
under  the  second,  the  prisoner  was,  as  his  counsel  insisted,  j^^ima  facie 
entitled  to  a  verdict.  It  lay  with  the  counsel  for  the  people  to  prove 
their  case,  and  then  to  show  by  further  testimony  that  it  was  not  the 
case  before  presented,  nor  which  might  have  been  insisted  upon  at  the 
trial  for  the  robbery. 

At  all  events,  the  prisoner  was  entitled  to  go  farther  on  his  part,  and 
show  that,  in  truth,  the  former  trial  was  concerning  a  robbery,  or  a 


1004  COMMONWEALTH    V.    CLAIR.  [CHAI>.  XVL 

larceny  of  M'Harg's  watch.  This  would  have  exhibited  an  offence 
covered  by  the  last  indictment,  and  precluded  all  farther  inquiry  con- 
cerning it,  until  the  people  should  reply  by  contradictory  proof,  or  by 
setting  up,  on  new  proof,  a  really  distinct  and  untried  offence.  But  the 
ruling  of  the  court  below  cut  the  prisoner  off  from  all  farther  proof. 
The  whole  case  was  thrown  upon  a  substantial  difference  between  the 
offences  involved  in  the  two  indictments,  appearing  on  their  face. 

The  great  object  in  respect  to  that  class  of  pleas  in  bar  to  which  this 
belongs  is  to  see,  in  the  first  place,  whether  the  former  and  the  present 
declaration  or  indictment  are  of  sufficient  capacity  to  let  in  the  same 
cause  of  action  or  offence  under  each.  If  so,  the  former  trial  is, 
prima  facie,  always  a  bar.  The  parties  should,  however,  be  allowed 
free  scope  for  inquiry  as  to  what  was,  in  truth,  the  substantial  matter 
before  litigated.  If  that  were  the  same,  and  the  case  was  tried  upon 
its  merits,  the  decision  becomes  conclusive,  especially  in  a  criminal 
proceeding. 

The  verdict  at  the  general  sessions  must  be  set  aside,  and  a  new  trial 
had  in  that  court. 


COMMONWEALTH   t'.    CLAIR. 
Supreme  Judicial  Court  op  Massachusetts.     1863. 

{Reported  7  Allen,  525.] 

Ikdictment  for  embezzling  sixteen  Melton  cloth  overcoats,  the  prop- 
erty of  David  M.  Hodgdon. 

At  the  trial  in  the  Superior  Court,  before  Ames,  J. ,  the  defendant 
pleaded  in  bar  a  previous  acquittal  upon  the  same  charge ;  and  it  was 
admitted,  on  the  part  of  the  Commonwealth,  that  the  defendant  had 
been  duly  tried  and  acquitted  on  an  indictment  charging  him  with 
embezzling  a  quantity  of  Melton  cloth,  lasting,  velvet,  flannel,  wadding, 
and  other  materials  used  in  making  overcoats,  the  property  of  said 
Hodgdon,  which  had  been  delivered  to  the  defendant  to  be  made  into 
overcoats;  and  that  the  present  indictment  was  for  the  same  crime 
intended  to  be  covered  by  the  first  indictment.  The  principal  facts 
which  appeared  in  both  cases  were,  that  Hodgdon  delivered  the  ma- 
terials to  the  defendant  as  aforesaid,  and  that  several  overcoats  were 
made  up  and  returned,  but  the  work  proved  unsatisfactory,  and  they 
were  redelivered  for  completion  to  the  defendant,  who  subsequently  did 
the  acts  relied  upon  as  proof  of  the  embezzlement. 

The  judge  overruled  the  plea  in  bar,  and  the  defendant  alleged 
exceptions. 

BiGELOw,  C.  J.  The  obvious  and  decisive  answer  to  the  defendant's 
plea  in  bar  of  autrefois  acquit  is,  that  the  first  indictment  charges  a 
different  offence  from  that  set  out  in  the  indictment  on  which  the 
defendant  is  now  held  to  answer.     The  principle  of  law  is  well  set- 


SECT.    I.]  COMMONWEALTH    ?'.    CLAIR.  1005 

tied  that  in  order  to  support  a  plea  of  aiitrrfois  acquit  the  oflFences 
charged  in  the  two  indictments  must  be  identical.  The  test  of  this 
identity  is  to  ascertain  whether  the  defendant  might  have  been  con- 
victed on  the  first  indictment  by  proof  of  the  facts  alleged  in  the  second. 
The  question  is  not  whether  the  same  facts  are  offered  in  proof  to  sus- 
tain the  second  indictment  as  were  given  in  evidence  on  the  trial  of  the 
first ;  but  whether  the  facts  are  so  combined  and  charged  in  the  two 
indictments  as  to  constitute  the  same  offence.  It  is  not  sufficient  to  say, 
in  support  of  d  plea  of  autrefois  acquit,  that  the  transaction  or  facts  on 
which  the  two  indictments  are  based  are  the  same.  It  is  necessary  to 
go  further,  and  to  ascertain  and  determine  whether  they  are  so  alleged 
in  the  two  indictments  as  to  constitute  not  only  the  same  olTence  in 
degree  or  kind,  but  also  that  proof  of  the  same  facts  offered  to  sustain 
the  second  indictment  would  have  well  supported  the  first.  The  King 
V.  Vandercomb,  2  Leach  (4th  ed.),  708  ;  Commonwealth  r.  Robj',  12 
Pick.  496,  500;  Commonwealth  v.  Wade,  17  Pick.  400.  The  last  case 
affords  an  apt  illustration  of  the  practical  application  of  the  rule.  The 
defendant  was  indicted  for  burning  a  dwelling-house  by  setting  fire  to 
the  barn  of  A.  and  B.  The  evidence  showed  that  it  was  the  barn  of  A. 
and  C.  This  variance  in  the  description  of  the  offence  was  held  to  be 
fatal,  and  the  defendant  was  acquitted.  He  was  subsequently  indicted 
for  burning  the  same  house  by  setting  fire  to  the  barn  of  A.  and  C.  On 
a  plea  of  autrefois  acquit  it  was  held  that  the  previous  acquittal  on  the 
first  indictment  was  no  bar.  The  facts  offered  in  support  of  the  two 
indictments  were  the  same,  but  different  offences  were  charged  in  them. 
The  averment  of  property  in  the  barn  was  material,  and  this  fact  being 
alleged  differently  in  the  two  indictments,  they  were  not  for  the  same 
offence  either  in  form  or  substance.  So  in  the  case  at  bar.  The 
defendant  was  first  indicted  for  embezzling  cloth,  velvet,  flannel,  and 
other  materials  of  which  overcoats  were  made.  This  indictment  would 
not  have  been  supported  if  it  appeared  that,  at  the  time  when  the 
alleged  embezzlement  was  committed  by  the  defendant,  these  articles 
no  longer  existed  separately,  but  had  been  used  and  converted  into  gar- 
ments properly  called  and  known  as  overcoats.  There  would  have  been 
in  such  case  a  material  variance  in  the  description  of  the  articles  embez- 
zled ;  the  evidence  would  not  have  corresponded  with  the  allegation  in 
the  indictment  of  embezzling  cloth  and  other  materials,  and  the  defend- 
ant would  have  been  rightly  acquitted  on  that  ground.  It  is  common 
learning  that  in  indictments  for  larceny,  embezzlement,  and  kindred 
offences,  the  description  of  the  property  which  forms  the  subject  of  the 
offence  must  be  proved  as  laid.  A  person  indicted  for  stealing  shoes 
cannot  be  convicted  by  proof  that  he  had  stolen  boots  ;  nor  is  an  indict- 
ment for  stealing  a  sheep,  which  by  legal  implication  avers  that  the 
animal  was  alive  when  stolen,  supported  by  evidence  that  it  was  in  fact 
dead  when  feloniously  taken.  If  an  article  has  obtained  in  common 
parlance  a  particular  name,  it  is  erroneous  to  describe  it  by  the  name  of 
the  material  of  which  it  is  composed.     Archb.  Crim.  PI.  (5th  Am.  ed.) 


1006  COMMONWEALTH    V.    CLAIR.  [CHAP.  XVL 

48;  Roscoe's  Crim.  Ev.  (5th  ed.)  203;  Rex  v.  Edwards,  Russ.  &  Ry. 
497;  Rex  v.  Halloway,  1  C.  &  P.  128;  Regina  v.  Mansfield,  Car.  & 
M.  140. 

In  the  second  indictment  the  defendant  is  charged  with  embezzling 
overcoats.  This  is  a  different  offence  from  that  charged  in  the  first 
indictment.  Nor  would  the  evidence  which  would  be  sufficient  to  sup- 
port it  have  warranted  a  conviction  on  the  charge  of  embezzling  the 
materials  of  which  the  coats  were  made.  He  has  therefore  been 
acquitted  of  a  different  offence  from  that  now  charged  against  him. 
Smjl?  '/r  mittal  is  no  bar  to  the  present  indictment. 

Exceptions  overruled. 


APPENDIX 


The  following  definitions  of  tlie  princii);il  crimes  are  taken  cliiefly  from  Black- 
Btoue's  Commeutaries,  and  from  the  codes  and  statutes  of  California,  In<liana,  New 
York,  and  Ohio.  It  is  believed  tliat,  so  far  as  tiie  common-law  definitions  of  these 
crimes  have  been  changed  in  any  jurisdiction  by  statute,  the  clianges  will  not 
materially  vary  from  those  here  given. 

Treason. 

Const.  IT.  S.,  art.  3,  sec.  3.  Treason  against  the  TTuited  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  tlieir  enemies,  giving  tliem  aid  and  com- 
fort. No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open  court. 

For  treason  in  England,  see  4  Bl.  Com.  74. 

N.  Y.  Penal  Code,  sees.  37-40.  Treason  against  the  people  of  the  state  con- 
sists in 

1.  Levying  war  against  the  people  of  the  state,  within  this  state  ;  or 

2.  A  combination  of  two  or  more  persons  by  force  to  usurp  the  government  of  the 
state,  or  to  overturn  the  same,  shown  by  a  forcible  attempt,  made  within  the  state, 
to  accomplish  tliat  purpose ;    or 

3.  Adhering  to  the  enemies  of  the  state,  while  separately  engaged  in  war  with  a 
foreign  enemy,  in  a  case  prescril)ed  in  the  constitution  of  the  United  States,  or  giving 
to  such  enemies  aid  and  comfort  within  the  state  or  elsewhere. 

Treason  is  punisliable  by  death. 

To  constitute  levying  war  against  the  people  of  this  state,  an  actual  act  of  war 
must  be  committed.     To  conspire  to  levy  war  is  not  enough. 

Where  persons  rise  in  insurrection  with  intent  to  prevent  in  general,  bv  force  and 
intimidation,  the  execution  of  a  statute  of  this  state,  or  to  force  its  repeal,  they  are 
guilty  of  levying  war.  But  an  endeavor,  although  by  numbers  and  force  of  arms,  to 
resist  the  execution  of  a  law  in  a  single  instance,  and  for  a  private  purpose,  is  not 
levying  war. 

Cal.  Pen.  Code,  sees.  37-38.  Treason  against  this  state  consists  only  in  levying  war 
against  it,  adhering  to  its  enemies,  or  giving  them  aid  and  comfort,  and  can  be  com- 
mitted only  by  persons  owing  allegiance  to  this  state.  The  punishment  of  treason 
shall  be  death. 

Misprision  of  treason  is  the  knowledge  and  concealment  of  treason,  without  other- 
wise assenting  to  or  partaking  in  the  crime.  It  is  punishable  by  imprisonment  in 
the  state  prison  for  a  term  not  exceeding  five  years. 

(This  is  the  common  form  of  definition.     Ohio  inserts  the  word  "  knowingly.") 


Escape,  Rescue,  etc. 

4  Bl.  Com.  129-131.  An  escape  of  a  person  arrested  upon  criminal  process 
by  eluding  the  vigilance  of  his  keepers  before  he  is  put  in  hold  is  also  an  offence 
against  public  justice,  and  the  party  himself  is  punishable  by  fine  or  imprisonment ; 
but  the  officer  permitting  such  escape,  either  by  negligence  or  connivance,  is  much 
more  culpable  than  the  prisoner. 

Breach  of  prison  by  the  offender  himself,  when  committed  for  any  cause,  was  felony 
at  the  common  law ;  or  even  conspiring  to  break  it :  but  this  severity  is  mitigated  bj 

1007 


1008  APPENDIX. 

the  statute  1   Edw.  II.,  which  enacts  that  no  person  shall  have  judgment  of  life  or 
member  for  breaking  prison,  unless  committed  for  some  capital  offence. 

llescue  is  the  forcibly  aud  knowingly  freeing  another  from  an  arrest  or  imprisonment. 

Barretry. 

4  Bl.  Com.  134.  Common  barretry  is  the  offence  of  frequently  exciting  and  stirring 
up  suits  and  quarrels  between  his  majesty's  subjects,  either  at  law  or  otherways. 

N.  Y.  Pen.  Code,  sec.  132.  Common  barratry  is  the  practice  of  exciting  groundless 
judicial  proceedings. 

Maintenance. 

4  Bl.  Com.  134.  Maintenance  is  ...  an  oiRcious  intermeddling  in  a  suit  that  no 
way  belongs  to  one  by  maintaining  or  assisting  either  part}'  with  money  or  otherwise 
to  prosecute  or  defend  it.  ...  A  man  may,  however,  maintain  the  suit  of  his  near 
kinsman,  servant,  or  poor  neighbour,  out  of  charity  and  compassion,  with  impunity. 

Cal.  Pen.  Code,  sec.  161.  Every  attorney  who,  either  directly  or  indirectly,  buys 
or  is  interested  in  buying  any  evidence  of  debt  or  thing  in  action,  with  intent  to  bring 
suit  thereon,  is  guilty  of  a  misdemeanor. 

Champertii . 

4  Bl.  Com.  135.  Champerty,  campi-partitio,  is  ...  a  bargain  with  a  plaintiff  or 
defendant  campiun  partire,  to  divide  tlie  land  or  other  matter  sued  for  between  them 
if  they  prevail  at  law ;  whereupon  the  champerter  is  to  carry  on  the  party's  suit  at 
his  own  expense. 

(These  crimes  are  obsolete  in  most  states.) 

E7nbraceri/, 

4  Bl.  Com.  140.  Embracery  is  an  attempt  to  influence  a  jury  corruptly  to  oue  side 
by  promises,  persuasions,  entreaties,  money,  entertainments,  and  tlie  like. 

Extortion. 

4  Bl.  Com.  141.  Extortion  is  an  abuse  of  public  justice,  which  consists  in  any  officer's 
unlawfully  taking,  by  colour  of  his  office,  from  any  man,  any  money  or  thing  of  value, 
that  is  not  due  to  him,  or  more  than  is  due,  or  before  it  is  due. 

Perjuri/. 

4  Bl.  Com.  137.  Perjury  is  .  .  .  committed  when  a  lawful  oath  is  administered  in 
some  judicial  proceeding  to  a  person  who  swears  wilfully,  absolutely  and  falsely  in  a 
matter  material  to  the  issue  or  point  in  question. 

Subornation  of  perjury  is  the  offence  of  procuring  another  to  take  sucli  a  false  oath 
as  constitutes  perjury  in  tlie  principal. 

Cal.  Pen.  Code,  118.  Every  person  who,  having  taken  an  oath  that  he  will  testify, 
declare,  depose,  or  certify  truly  before  any  competent  tribunal,  officer  or  person,  in 
any  of  the  cases  in  which  such  an  oath  may  by  law  be  administered,  willfully  and  con- 
trary to  such  oath,  states  as  true  any  material  matter  which  he  knows  to  be  false,  is 
guilty  of  perjury. 

Ind.  Eev.  Stat.,  sec.  2006.  Whoever,  having  taken  a  lawful  oath  or  affirmation  in 
any  matter  in  which,  by  law,  an  oath  or  affirmation  may  be  required,  shall,  upon  such 
oath  or  affirmation,  swear  or  affirm  willfully,  corruptly,  and  falsely  touching  a  matter 
material  to  the  point  in  question,  shall  be  deemed  guilty  of  perjury.  .  .  . 

Oh.  Rev.  Stat.,  sec.  6897.     Whoever,  either  verbally  or  in  writing,  on  oath  lawfully 


APPENDIX. 


1009 


administered,  willfully  and  corruptly  states  a  falsehood,  as  to  ai:y  material  matter,  in  a 
proceeding  before  any  court,  tribunal  or  officer  created  by  law,  or  in  any  matter  in  rela- 
tion to  which  an  oath  is  authorized  by  law,  is  guilty  of  perjury,  and  shall  be  imprisoned 
in  the  penitentiary  not  more  than  ten  nor  less  than  three  years. 

N.  Y.  I'eu.  Code,  sees.  9G-99,  101.  A  person  who  swears  or  affirms  that  he  will 
truly  testifv,  declare,  depose,  or  certify,  or  tliat  any  testimony,  declaration,  deposition, 
certificate,  affidavit,  or  other  writing  by  him  subscribed,  is  true,  in  an  action,  or  a 
special  proceeding,  or  upon  any  hearing,  or  inquiry,  or  on  any  occasion  in  which  an 
oath  is  required  bv  law,  or  is  necessary  for  the  prosecution  or  defense  of  a  private  right, 
or  for  the  ends  of  public  justice,  or  may  lawfully  be  administered,  and  who  in  such 
action  or  proceeding,  or  on  such  lieariug,  incjuiry  or  other  occasion,  willfully  and  kuow- 
inglv  testifies,  declares,  deposes  or  certifies  falsely,  in  any  material  matter,  or  states 
in  his  testimony,  declaration,  deposition,  affidavit,  or  certificate,  any  material  matter 
to  be  true  which  he  knows  to  be  false,  is  guilty  of  perjury. 

It  is  no  defense  in  a  prosecution  for  perjury  that  an  oath  was  administered  or  taken 
in  an  irregular  manner.  .  .  . 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  defendant  was  not  competent 
to  give  tlie  testimony,  deposition,  or  certificate  of  wliich  falsehood  is  alleged.  It  is 
sufficient  tliat  he  actually  was  permitted  to  give  such  testimony  or  make  such  deposi- 
tion or  certificate. 

It  is  no  defense  to  a  prosecution  for  perjury  that  the  defendant  did  not  know  the 
materiality  of  the  false  statement  made  by  him ;  or  that  it  did  not  in  fact  affect  tiie 
proceeding  in  and  for  which  it  was  made.  It  is  sufficient  that  it  was  material,  and 
miglit  have  affected  sucli  proceeding. 

An  unqualified  statement  of  that  which  one  does  not  know  to  be  true  is  equivalent 
to  a  statement  of  that  which  he  knows  to  be  false. 

Affray. 

4  Bl.  Com.  145.  Affrays  (from  affraier,  to  terrify)  are  the  fighting  of  two  or  more 
persons  in  some  public  place,  to  the  terror  of  his  majesty's  subjects  :  for,  if  the  fight- 
ing be  in  private,  it  is  no  affray  but  an  assault.  Affrays  may  be  suppressed  by  any 
private  person  present,  wno  is  justifiable  in  endeavouring  to  part  the  combatants, 
wliatever  consequence  may  ensue.  But  more  especially  the  constable,  or  other  similar 
officer,  however  denominated,  is  bound  to  keep  the  peace  ;  and  to  that  purpose  may 
break  open  doors  to  suppress  an  affray,  or  apprehend  the  affrayers ;  and  may  either 
carry  them  before  a  justice,  or  imprison  them  by  his  own  authority  for  a  convenient 
space  till  the  heat  is  over ;  and  may  then  perhaps  also  make  them  find  sureties  for 
the  peace. 

Riot,  etc. 

4  Bl.  Com.  146.  Riots,  routs,  and  unlawful  assemblies,  must  have  three  persons  at 
least  to  constitute  them.  An  unlawful  assembly  is  when  three  or  more  do  assemble 
themselves  together  to  do  an  unlawful  act,  as  to  pull  down  enclosures,  to  destroy  a 
warren  or  the  game  therein  ;  and  part  without  doing  it,  or  making  any  motion 
towards  it.  A  rout  is  where  tliree  or  more  meet  to  do  an  unlawful  act  upon  a  common 
quarrel,  as  forcibly  breaking  down  fences  upon  a  right  claimed  of  common  or  of  way  ; 
and  make  some  advances  towards  it.  A  riot  is  where  three  or  more  actually  do  an 
unlawful  act  of  violence,  either  with  or  without  a  common  cause  or  quarrel :  as  if 
they  beat  a  man  ;  or  hunt  and  kill  game  in  another's  park,  chase,  warren,  or  liberty ; 
or  do  any  other  unlawful  act  with  force  and  violence  ;  or  even  do  a  lawful  act,  as 
removing  a  nuisance,  in  a  violent  and  tumultuous  manner. 

Forcible  Entry. 

4  Bl.  Cora.  148.  Forcible  entry  or  detainer  is  committed  by  violently  taking  or 
keeping  possession  of  lands  and  tenements  with  menaces,  force  and  arms,  and  without 
the  anthoritv  of  law.     (So  Ind.) 


1010  APPENDIX. 

Cal.  Pen.  Code,  sec.  418.  Every  person  using,  or  procuring,  encouraging,  or  assiet- 
ing  another  to  use,  any  force  or  violence  in  entering  upon  or  detaining  any  lands  or 
other  possessions  of  another,  except  in  the  cases  and  in  the  numner  allowed  bv  law,  is 
guilty  of  a  misdemeanor.     ( So  New  York.) 

Murder. 
See  ante,  pp.  461,  471. 

Manslaughter. 

See  ante,  p.  473. 

See  a  division  of  this  crime  into  degrees  in  New  York,  Pen.  Code,  sees.  189  to  20L 

Mayhem, 
See  ante,  p.  419. 

Bape. 
See  ante,  pp.  419,  455. 


See  ante,  pp.  419,  699. 
See  ante,  pp.  420-434. 


Robbery. 

Assault  and  Battery. 

Arson. 


See  ante,  p.  797. 

For  degrees  of  arson,  see  N.  Y.  Pen.  Code,  sees.  486-488. 

Burglary. 
See  ante,  p.  780. 
For  degrees  of  burglary,  see  N.  Y.  Pen.  Code,  sees.  496-498. 

Larceny  and  Kindred  Crimes. 

See  ante,  pp.  488  ff.,  706,  718,  758. 

Cal.  Pen.  Code,  sees.  484,  503,  532.  Larceny  is  the  felonious  stealing,  taking, 
carrying,  leading,  or  driving  away  the  personal  jjroperty  of  another. 

Embezzlement  is  the  fraudulent  appropriation  of  property  by  a  person  to  whom  it 
has  been  intrusted. 

Every  person  who  knowingly  and  designedly,  by  false  or  fraudulent  representation 
or  pretenses,  defrauds  any  other  person  of  money  or  property,  or  who  causes  or  pro- 
cures others  to  report  falsely  of  his  wealth  or  mercantile  character,  and  by  thus 
imposino-  upon  any  person  obtains  credit,  and  thereby  fraud.ulently  gets  into  possession 
of  money  or  property,  is  punishable,  .  .  . 

N.  Y.  Pen.  Code,  Sec.  528.  A  person  who,  with  the  intent  to  deprive  or  defraud 
the  true  owner  of  his  property,  or  of  the  use  and  benefit  thereof,  or  to  appropriate  tlie 
same  to  the  use  of  the  taker,  or  of  any  other  person,  either, 

1.  Takes  from  the  pos.session  of  the  true  owner,  or  of  any  other  person  ;  or  obtains 
from  such  pos.session  by  color  or  aid  of  fraudulent  or  false  representation  or  pretense, 
or  of  any  false  token  or  writing ;  or  secretes,  withholds,  or  appropriates  to  his  own 
use,  or  that  of  any  person  other  than  the  true  owner,  any  money,  personal  property, 
thing  in  action,  evidence  of  debt  or  contract,  or  article  of  value  of  any  kind ;  or 

2.  Having  in  his  possession,  custody,  or  control,  as  a  bailee,  servant,  attorney, 
agent,  clerk,  trustee,  or  officer  of  any  person,  association,  or  corporation,  or  as  a  public 
officer,  or  as  a  person  authorized  by  agreement,  or  by  competent  authority,  to  hold  or 
take  such  possession,  custody  or  control,  any  money,  property,  evidence  of  debt  ot 


APPENDIX.  1011 

contract,  article  of  value  of  any  nature,  or  thing  in  action  or  possession,  appropriates 
the  same  to  his  own  use,  or  that  of  any  other  person  other  thau  the  true  owuer  or 
person  entitled  to  the  heuefit  thereof ; 

Steals  such  property,  and  is  guilty  of  larceny. 

Mass.  R.  L.  ch.  208,  Sect.  26.  Whoever  steals,  or,  with  intent  to  defraud,  obtains 
by  a  false  pretence,  or  whoever  unlawfully  and,  with  intent  to  steal  or  embezzle,  con- 
verts or  secretes  with  intent  to  convert,  the  money  or  personal  chattel  of  another, 
whether  such  money  or  personal  chattel  is  or  is  not  in  his  possession  at  tiie  time  of 
such  conversion  or  secreting,  sliall  be  guilty  of  larceny. 

J\Ialicions  Mischief. 

4  Bl.  Com.  244.  Malicious  mischief,  or  damage,  is  the  next  species  of  injury  to 
private  property,  which  tlie  law  considers  as  a  public  crime.  This  is  such  as  is  done, 
not  animo  furandi  or  with  au  intent  of  gaining  by  another's  loss  ;  which  is  some, 
though  a  weak  excuse:  but  either  out  of  a  spirit  of  wanton  cruelty,  or  black  and 
diabolical  revenge.  In  which  it  bears  a  near  relation  to  the  crime  of  arson ;  for  as 
that  affects  the  habitation,  so  this  does  the  other  property,  of  individuals. 

Forgery. 

4  Bl.  Com.  247.  Forgery  or  the  crimen  falsi  is  .  .  .  the  fraudulent  making  or 
alteration  of  a  writing  to  the  ])rejudice  of  another  man's  right. 

Oh.  Rev.  Stat.  sec.  7091.  Whoever  falsely  makes,  alters,  forges,  counterfeits,  prints 
or  photographs  any  (here  are  enumerated  such  instruments  as  may  be  forged)  with 
intent  to  defraud  ;  or  utters  or  publishes  as  true  and  genuine  any  such  false,  altered, 
forged,  counterfeited,  falsely  printed  or  photographed  matter,  knowing  the  same  to 
be  false,  altered,  forged,  counterfeited,  falsely  printed  or  photographed,  with  intent  to 
defraud,  is  guilty  of  forgery. 

(This  is  substantially  the  form  of  statute  in  most  states.  For  degrees  of  forgery, 
see  N.  Y.  Pen.  Code,  sees.  509-519.) 

Piracy. 

4  Bl.  Com.  72.  The  offence  of  piracy  by  common  law  consists  in  committing  those 
acts  of  robbery  and  depredation  upon  the  high  seas  which,  if  committed  upon  laud, 
would  have  amounted  to  felony  there. 

2  Bish.  Crim.  Law,  sec.  1058.  Piracy  is  any  forcible  depredation  on  the  high  sea? 
perpetrated  in  general  hostility  to  mankind  for  the  gain  or  other  private  ends  of 
the  doers. 


(o^ 


Uk    000  594  068    9 


